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| • | Peter Hecht
Editor-In-Chief |
| • | Brian Horowitz
Designer |
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 Friends of Magna,
Well, another year has come and gone. In 2010 we saw Oracle win a 1.3 billion dollar jury verdict against rival SAP AG. We also saw the largest jury verdict ever in a Hollywood accounting case, which had Disney losing to "Who Wants to Be a Millionaire" producer Celador Intl. to the tune of 319 million dollars. And, finally, Walmart was tagged in Colorado for what may be the largest slip-and-fall verdict in US history —$15M! What do all three of these HUGE verdicts have in common? None of them retained Magna Legal Services’ litigation graphics or jury research team. I’m not saying we could have changed history, but who knows…
So, what's in store for 2011? Will JuryScout help us realize our dreams of batting 100 with our trials? Will my partner Ron Kurzman outdo himself and change the game of jury research again? Can Mark Calzaretta recreate an entire Baltimore County city in digital format for a large environmental matter like he did last year? Is Bob Ackerman going to expand the Magna vision with new business opportunities? Will litigators remain on the cutting edge of technology and keep pace with today’s jurors? Will you get sick of my self-promoting editorial?
Only time will tell. However, one thing is for sure - whatever happens in the new year, Magna will be there as it has for the past 4 years to help law firms, corporate counsel, and insurance professionals utilize the latest and greatest in new litigation technology to achieve success.
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 Markus Hartmann is a Harvard Law grad and former Marine Corps helicopter pilot who flew during the 1990-91 Gulf War. As a lieutenant colonel in the reserves he worked as a military lawyer on a 2005 anti-terrorism mission in the African nation of Djibouti. His civilian job is vice president and general counsel North America, Australia and New Zealand for the giant consumer brands company Reckitt Benckiser. Their products run the gamut from Lysol to medicines such as Mucinex.
Q. Any similarities between an in house counsel and a helicopter pilot?
A. As a helicopter pilot, you have to have both hands on the controls at all times, and helicopters typically play a supporting role in combat. In house lawyering is similar. You have to constantly monitor your legal strategy and attorneys (both internal and external) to make sure they support the company’s overall business strategy.
Q. What is your company’s overall business strategy?
A. A big part is above-average industry growth, and part of that is controlling legal costs. Outside counsel may not have that same view.
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 As the costs and burdens of discovery have mounted over the past decade, courts and commentators have increasingly suggested cooperation between parties and their counsel as an essential remedy for the chaos and satellite litigation that may arise from large-scale (chiefly electronic) discovery projects. Cooperation can enhance efficiency in the parties' search for relevant materials, avoid costly mistakes and misunderstandings, and permit sharing of best practices for improved technical operations. Amendments to the Federal Rules of Civil Procedure, adopted in 2006 after more than five years of study and drafting, essentially called on parties to "meet and confer" early in a case to discuss the creation of an efficient protocol for discovery.1 In 2008, the American College of Trial Lawyers concluded that the civil discovery system was "broken" and called for reforms to decrease the costs and burdens of discovery on the judicial system and on litigants.2 In July 2008, the Sedona Conference issued a "Cooperation Proclamation," which encouraged parties to work together to improve efficiency and effectiveness of the discovery process.3
Concise explanations of the merits of cooperation abound.4 Courts, moreover, have repeatedly referred to the need for cooperation – and to the Sedona Cooperation Proclamation in particular – in a variety of opinions on discovery motions.5 At latest count, nearly 100 jurists across the country have signed on to the Sedona Cooperation Proclamation.6
Why, then, have parties and their counsel not broadly embraced the principle of cooperation in discovery? Why do the costs and burdens of discovery continue to mount? And why do courts have to hector parties and counsel repeatedly, after problems arise, that they "should have cooperated" (past tense) to avoid the problems that so often arise? This Article briefly examines some of the reasons why parties may choose not to cooperate in the discovery process and suggests some techniques that courts might use to encourage cooperation and deter senseless conflict.
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| Five reasons to conduct Jury Research.
1. Control Costs: Get to know your case, for better or worse, as early as you can. Research helps determine whether your case is as strong as you hope, or whether it might be more cost effective to either a) redirect your discovery or b) settle your case;
2. Reality Check: Find out if juror reactions to your case confirm the pros and cons of your case and meet your expectations or concerns, find out what makes them angry, and see what they identify as crucial, important or insignificant. Find your vulnerabilities and opportunities in the case.
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 I. INTRODUCTION
Since the advent of the seminal decisions of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. (1993), Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) and General Electric v. Joiner, 522 U.S. 136 (1996), there has been significant focus regarding the role of the court in determining the admissibility of expert testimony. Federal case law abounds with discussion of the court’s "gate keeper function" and the analytical framework employed to evaluate scientific evidence. The gravamen of three Supreme Court decisions is whether the proffered testimony is "grounded in the methods and procedures of science." Daubert at 590. In other words, is the opinion testimony based upon a reliable and trustworthy scientific foundation.
On the other hand, many state courts do not follow Daubert. Thus, a question posed is what arguments can be employed in such jurisdictions to challenge expert opinion testimony. This article serves to detail such an approach under California law. Comparison of code citations to those in states where the reader practices may assist in developing a basis for excluding the opinion at issue.
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