Michael Hoenig

There’s a high-stakes trial unfolding in a San Francisco federal court over whether Monsanto’s glyphosate-based weed killer “Roundup” caused plaintiff’s non-Hodgkin lymphoma. Edward Hardeman claims Roundup, which he used to clear poison oak from his property over some 26 years, caused his cancer. Monsanto is now owned by Bayer AG.

A prior verdict in California state court for a different claimant awarded $39 million in compensatory damages and $250 million for punitive damages. The state trial judge upheld the compensatory award but slashed punitive damages down to a one-to-one ratio. Thus, the judgment totaled some $78.6 million. In the wake of that result, thousands of cases have been filed attacking the safety of glyphosate-based herbicides. See “Judge Upholds Bayer/Monsanto Roundup Cancer Liability But Slashes Award.”

In the San Francisco federal trial, Monsanto contends that Roundup is not a risk factor for non-Hodgkin lymphoma, an ailment that in most cases has no known cause. Further, Monsanto counters that the plaintiff Hardeman has four risk factors for the disease: He is over age 60; he has a higher than normal body mass index; he was exposed to Hepatitis B; and, most crucially, had a chronic Hepatitis C infection.

U.S. District Judge Vince Chhabria decided in December that Hardeman’s trial would be bifurcated. The first phase would address only whether Roundup and glyphosate can cause non-Hodgkin lymphoma and whether they caused plaintiff’s cancer. A later trial phase would address liability and damages. In her causation-trial opening statement to the jury, plaintiff’s Colorado lead trial lawyer, Aimee Wagstaff, irked the judge by referring to prohibited evidence. She mentioned phase 2 of the trial and a number of evidentiary items the judge declared off limits in this causation phase.

The judge called these gambits “deliberate” and warned that further “crossings of the line” would mean “your opening statement will be over. I will tell you to sit down, I will tell you your opening statement is over and I will do it in front of the jury. Last chance; final warning.” There was more, however. The judge ordered Wagstaff to show cause by 8 p.m. why she should not be sanctioned for “willfully and repeatedly violating the limitations on the subject matter” allowed in the openings. See “Trial Over Roundup Cancer Claim Begins With Judge’s Sanction Threat,” Feb. 25, 2019.

On February 26, Judge Chhabria ordered Wagstaff to pay a $500 sanction saying she “committed several acts of misconduct in her opening” which were “intentional and committed in bad faith.” As summarized in an ABA Journal Daily News report: Wagstaff spoke to jurors about phase 2 of the trial, “despite a clear understanding among the parties that this would be off-limits.” She spent a significant amount of time on Hardeman’s personal history and his discovery of the cancer “even though this information is clearly not relevant to Phase 1.” She quoted an internal memo that the judge had earlier ruled likely was to distract the jury and included excerpts on slides. She also referred to evidence despite pretrial rulings limiting its admission. Chhabria said Wagstaff wrongly tried to discuss Roundup cancer findings by an international group and improperly tried to tell the jury that the Environmental Protection Agency has had internal debate on the cancer issue. “These were not slips of the tongue,” Chhabria wrote. “They were included in the slides Wagstaff and her team prepared and used for her opening statement, and they were on issues that Wagstaff and her team have made clear throughout the pretrial proceedings they believe are important for the jury to hear at the same time it hears the evidence on causation. Nor were the violations borderline—they were obvious violations of both the letter and spirit of the court’s pretrial rulings.” See “Federal Judge Sanctions Lead Lawyer in Roundup Trial for Opening Statement ‘Misconduct’,” March 1, 2019; “Judge Sanctions Attorney in Second Day of Roundup Trial,” Feb. 26, 2019.

Types of Abuse

However the San Francisco Roundup case turns out, the sanctions order seems a good reminder that compelling opening statements often involve attorney ingenuity, creativity and craftsmanship. The desire to succeed at trial, coupled with the innovative burst to win the hearts and minds of jurors, can motivate risk-taking by some advocates that actually results in misconduct. There can be consequences beyond sanctions, mistrials or adverse rulings in the specific litigation. Bad publicity is not helpful attorney marketing. Ethical rules can be violated and grievances filed. Even if the judge lets the behavioral trespass pass, the jurist nevertheless may remember the offender and be more restrictive when his or her case comes before him in the future. Then, there might be longer-term reputational fallout such that adversary lawyers (and others) don’t trust future dealings with the sharp tactician.

The foregoing penalties for opening statement misconduct may not seem so foreboding where the stakes are high and, eventually, a generous fee for a substantial verdict winds up “rewarding” the offensive conduct. After all, some judges may be tolerant of trial gamesmanship or loath to shackle advocative maneuvers. Most (especially those with busy dockets) would be reluctant to declare a mistrial after the effort and expense of seating a jury.

Further, since “the advent of the Internet and the insinuation of visual media into every facet of life via mobile devices have transformed the way people receive and process information,” the use of media and visual aids in opening statements has skyrocketed. Noted jury consultants urge that effective incorporation of visual aids into opening statements “can greatly impact the case as a whole.” Presenting such visual stimuli during openings “improves an attorney’s ability to communicate with and persuade the jury.” See J. Dubin, “Incorporating Memorable Demonstratives Into Opening Statements.” Demonstrative aids and exhibits used in openings, in turn, greatly magnify the policing effort opposing counsel and judges must expend and enforce.

Advice about “what goes” and what offends in openings and summations (closing arguments) is legion. My own columns discussed the “do’s and don’ts” of openings and improper argument, citing helpful articles and cases. See, e.g., M. Hoenig, “Practical Tips About Opening Statements,” New York Law Journal, Aug. 8, 2016, p. 3; “Guarding Against Improper Argument at Trial: Courts, Counsel Are Instrumental,” NYLJ, Jan. 20, 2017, p. 3; “Improper Argument At Trial: Scrutinizing Counsel’s Conduct,” NYLJ, Feb. 9, 2017, p. 3. In general, the prohibitions against improper argument in summations apply to opening statements. Indeed, as the word “statement” suggests “argument” in the opening generally is taboo. Most trial specialists know that some will slyly craft their opening statement to camouflage the “argument” incorporated into the statement. It’s up to opposing counsel and trial judges to recognize the misconduct and take effective action.

To assist erstwhile policers of opening statement misconduct in their justice-seeking task, here are a few more resources interested readers may find helpful or instructive in preparing for the battle. Some contain helpful collections of case law reflecting misbehavior subtopics. Some refer to the ethical guidelines that may govern what is proscribed. See e.g., N. Kornfeld & T.S. Katz, “Opening and Closing Statements,” NYSBA Trial Lawyers Section Digest, No. 66, p. 3 (Spring 2015) (includes New York case law citations re what is permitted and not); A.A. Rodriguez, “Tips For Opening Statements and Closing Arguments,” Lexology, Aug. 13, 2013) (collection of pertinent case law by subtopic); S.M. Brook & A. Corn, “Opening Statements: Effective Advocacy Without Crossing the Line,” Dec. 13, 2012; D. Bernstein, “The Abuse of Opening Statements and Closing Arguments in Civil Litigation,” (Manhattan Inst. Aug. 1, 1999); W. Veen & K. Stromeyer, “Opening Statement: Appeal To Your Jury Without Getting Appealed,” (Plaintiff Magazine, July 2009); M.J. Ahlen, “Opening Statements in Jury Trials: What Are the Legal Limits,” 71 N.D. L. Rev. 701 (1995).

Visual Aids

As Bernstein (cited above) suggests, attorney remarks that various courts have held to be improper include:

• Addressing a juror by name;

• Stressing irrelevant facts or issues;

• Attacking a party, counsel or a witness;

• Making disparaging comments;

• Stating a fact in opening statement that will not be proven;

• Instructing jurors on the law;

• Misstating the law;

• Expressing a personal belief in the merits of the client’s case;

• Making prejudicial or inflammatory remarks;

• Mentioning settlement discussions;

• Discussing subsequent repairs; and

• Mentioning the wealth or poverty of a party.

To the foregoing rather traditional items of misconduct or others mentioned in my prior columns, readers would do well to consider afresh the challenges posed when media and advanced visual aids are used in opening statements. Technologically, we are way beyond the use of traditional charts, graphs and chronologies. In some venues the courtroom of the future is here already. Computer-friendly, screen-friendly hardware and software increasingly is being installed. Court administrators welcome such innovations as a means to effectively move trials along and make the trial experience an enjoyable one for jurors.

But the new visual aids devices also spawn opportunities for misuse and misbehavior. For example, digital video snippets can be taken and presented out of context and be misleading. Worse, computerized images can be manipulated subtly by inserting or deleting a fact, a word, a message, an image, or even shading or exaggerating an image’s feature. Such subtle misrepresentations can be palmed off as a faithful excerpt of the original. The result: sophisticated, surreptitious and hard-to-discover misconduct.

Why fret about this? Because, as jury consultant Josh Dubin (cited above) has observed, the opening statement unleashes the “primary effect” of the “first impression.” Researchers found that “once people form an opinion or develop a theory, even one based on incomplete or inaccurate information, they are far less likely to change their minds when later confronted with contradictory information.” At the trial’s beginning, jurors are more attentive, engaged, curious and open-minded. Later, however, the tremendous information bombardment tires and disinterests them. Thus, they process and remember this secondary information to a lesser degree.

Another phenomenon Dubin mentions is so-called “confirmation bias.” This “corroborates the idea that information is more influential when it appears earlier rather than later.” Studies show that “after individuals form an impression, they tend to discount or reject any additional facts that challenge their established view/theory.” This means that jurors are likely to process information learned later in the trial “in the context of the opinion they already formed based on information they learned during opening statements.”

Thus, the battle of the opening statements is pivotal. Further, on average, humans retain only 15 percent of information received from “audible” sources (things they hear). But retention climbs to 65 percent when information is delivered “visually” (what they see). Another study found visual retention to be 87 percent of information, as opposed to 10 percent for information presented orally. So, we are (and will be) hurtling towards a visual-aids-oriented opening statement universe.

Imagine the challenge of monitoring an adversary’s digital image archives and exactingly examining snippets extracted by opposing counsel to be used in her opening. Even if exhibits and visual aids are ordered to be produced in advance of the adverse opening statement, it’s potentially a practical, logistical nightmare assignment to effect one’s “due diligence” in timely uncovering nascent misconduct by the opposing side. Trial counsel simply have to factor in the challenges of the courtroom of the future and practical responses.

Conclusion

The misconduct and sanction ordered in the San Francisco federal Roundup trial is a handy reminder that winning opening statements are highly prized work products. They call for crafty wisdom. But technology seems to be pushing the advocative frontier beyond past, traditional regimens. The time-honored “do’s and don’ts” attending opening statement practice may need to be freshened up to accommodate the new visual-aids era.

Michael Hoenig is a member of Herzfeld & Rubin.