Florida Civil - May 2011
In May this year, four juniors from the South Eastern Circuit - Alexander Robson (Littleton Chambers), Andrew Otchie (12 Old Square Chambers), Catriona Stirling (Cloisters) and I (Henderson Chambers) were fortunate enough to be awarded the SEC Scholarship to attend the Florida Bar’s Advanced Advocacy Programme in Gainesville at the University of Florida. Simon Browne QC (Temple Garden Chambers) led the group across the Atlantic and trained participants.
The course programme was built around the clinical negligence (medical malpractice) case of Coker v Z-Mart Inc, et al. and was structured as a week-long mock trial involving openings, closings and the direct and cross examination of lay and expert witnesses. The facts of the case were drawn from an actual claim in which a 17-year old boy suffered catastrophic spinal injuries at a picnic and games event organised by his father’s employers (Z-Mart). There were three co-defendants – Z Mart defending allegations of negligence in their arrangement, supervision and selection of the games, Dr Hoppe - the orthopaedic surgeon who performed two operations on the plaintiff’s spine and finally Ecdack – the manufacturer of a metal plate which had been inserted into the plaintiff’s spine and subsequently broke.
Two juries were selected to assess some of the presentation of evidence (overseen by a number of Florida judiciary) and to come to a final verdict. Expert witnesses were chosen from the relevant faculties at the University – professors in orthopaedics, psychiatry, engineering and physical education. There were 50 or so attendees, all experienced trial practitioners from a number of cities across Florida.
The course was intensive with working lunches on ethics, an evening gathering on materials science and daily sessions of advocacy critique with video reviews by senior practitioners and judiciary from the Florida Bar.
The nature of jury trial for even the smallest civil cases predictably influences the style of advocacy adopted by trial lawyers. Openings and closings in particular were intriguingly theatrical, advocates pacing the room, using homespun analogies, and relying heavily on Powerpoint presentations to convey issues to a paperless jury. The American advocates were, nevertheless, surprisingly eager to learn about a muted and undoubtedly more formal English approach to persuasion and the exchanging of courtroom cultures was fascinating.
Aside from the formal instruction and training, all members of the English delegation had a fantastic time exploring the University and local area. The campus itself is vast – much like an Olympic park with acres of green space, a lake complete with alligators and astonishingly professional sports facilities. The University of Florida football team – the Gators – is one of the best in the country, and their 90,000-seat home stadium is regularly sold out during the season. Nearby there is an Olympic sized swimming pool and basketball and hockey stadiums all of which tower over the mock-colonial ‘fraternity’ houses and their mysterious rituals and rites of passage within.
The Florida Bar hosted a fantastic final dinner at the end of the course in which several senior practitioners reflected on their important experiences in England, visiting the Inns of Court, observing criminal and civil cases in the Royal Courts of Justice and the Old Bailey, and in the rigours of advocacy training at Keble College, Oxford. There was no end of speculation as to what mysterious negotiations went on in the fabled ‘robing rooms’ of which they had heard so much! Simon Browne QC gave the final speech of the evening, discussing the importance of the sharing of techniques, ideas and practice between the English and American Bar, as well as telling some fabulously British jokes which the American audience loved so much they gave him a standing ovation.
One of the most fascinating aspects of the course was the opportunity to observe the process of jury selection and jury deliberation. We watched two seasoned practitioners work through each proposed juror, asking questions about their education, background and personal experience, rapidly and astutely sizing-up their likely behaviour in the jury room. They then explained the factors which influenced their decision to de-select certain proposed members. At the end of the course all the participants watched video recordings of the two juries debating their verdicts and assessing the appropriate level of damages. The advocates’ predictions of the behaviour of the each individual were eerily accurate. With no pain and suffering guidelines, few documents and no comparative case law, the way in which the jury came to a figure for damages was somewhat speculative. One juror proposed a figure of $100 million, another $10,000, finally settling on $18 million.
All of the English cohort had a challenging, rewarding, and absorbing week. It was a wonderful opportunity to expand our professional repertoire, and learn about a narrative style of advocacy and examination which was refreshingly different from our own.