A Failure of Remedies: The Case of Big Pharma (An Essay)

By Paul J. Zwier and Reuben Guttman
Emory Corporate Governance and Accountability Review
Emory Law

This article examines the U.S. pharmaceutical industry and the harms imposed on individual patients and healthcare consumers—including private and government third party payers—from practices proscribed by Federal and State laws regulating marketing and pricing.

The article pays particular attention to the False Claims Act (FCA), which has become the government’s primary civil weapon against fraudulent and/or wrongful conduct causing the expenditure of government dollars.
Read the entire Essay at http://law.emory.edu/ecgar/content/volume-3/issue-2/essays/failure-remedies-case-big-pharma.html

Whistleblower program will be one of the most significant national gatherings of 2016

Feb. 18 and 19, the Center for Advocacy and Dispute Resolution and the Emory Corporate Governance and Accountability Review will partner to present “Fraud Against the Government & SEC Whistleblower Actions Training.” This event will feature more than 20 authorities on fraud, including U.S. attorneys, experts from the U.S. Securities and Exchange Commission and judges.

The training will be held from 8:30 a.m. to 4 p.m. each day in Tull Auditorium, Gambrell Hall at Emory Law.

Reuben Guttman, partner with Guttman Buschner & Brooks, PLLC and senior fellow with the Center for Advocacy and Dispute Resolution, said, “We think that for would-be whistleblowers and their counsel, the Emory program will be one of the most significant national gatherings in 2016. The program will offer them an opportunity to hear directly from regulators about how they can work to maximize their contributions to federal whistleblower programs.”

Attendees can earn up to 12 CLE credits along with the Certificate of Completion of Emory University School of Law’s Advocacy and Dispute Resolution Training in Case Investigation. Registration is now open.

Featured panelists and instructors include:

  • John A. Horn, U.S. Attorney for the Northern District of Georgia
  • William M. Nettles, U.S. Attorney for the District of South Carolina
  • David Rivera, U.S. Attorney, Middle District of Tennessee
  • Sean McKessey, Director, Office of Whistleblower, U.S. Securities and Exchange Commission
  • Benjamin Singer, Chief, Securities & Financial Fraud Unit, Fraud Section, Criminal Division, U.S. Department of Justice
  • Walter Jospin, Regional Director, Atlanta Regional Office, U.S. Securities and Exchange Commission
  • William P. Hicks, Associate Regional Director, Atlanta Regional Office, U.S. Securities and Exchange Commission
  • Stephen E. Donahue, Assistant Regional Director, Atlanta Regional Office, U.S. Securities and Exchange Commission
  • Randy Chartash, Chief, Economic Crime Section at United States Attorney’s Office
  • Reuben Guttman, Partner, Guttman Buschner & Brooks, PLLC and Senior Fellow, Center for Advocacy and Dispute Resolution, Emory University School of Law
  • John Floyd, Partner, Bondurant Mixson & Elmore LLP
  • Michael A. Sullivan, Partner, Finch McCranie LLP
  • Sam Sheldon, Partner, Quinn, Emmanuel Urquhart & Sullivan, LLP
  • Bob Magnanini, Partner, Stone and Magnanini, LLP
  • David Bocian, Partner, Kessler, Topaz, Meltzer, Check, LLP
  • Traci Buschner, Partner, Guttman, Buschner & Brooks, PLLC
  • Christopher Haney, CPA, CFE, CHC, Forensus Group, LLC
  • Richard Harpootlian, Harpootlian Law
  • Jerry Martinj, Partner, Barrett Johnston Martin & Garrison, LLC
  • Amy Berne, Chief, Civil Division, United States Attorney’s Office, Northern District of Georgia
  • Sally Molloy, Assistant U.S. Attorney at U.S. Attorney’s Office, Northern District of Georgia
  • Paul Zwier, Professor; Director Center for Advocacy and Dispute Resolution, Emory University School of Law
  • Hon. Matt McCoyd, Magistrate Court Judge, DeKalb County; Associate Director Center for Advocacy and Dispute Resolution, Emory University School of Law

Profiles in Justice: An Advocacy Masterclass

Emory University Law School is behind an innovative trial advocacy course equipping law students with trial expertise.

ATLANTA, GA – On a Saturday morning in early May, a second year Emory University Law School Law student from Southern China stands at her place in the school’s mock trial courtroom and announces that she is ready to proceed with her case on behalf of the United States Government. While many law schools teach trial advocacy, Emory Law School is the only school in the United States requiring students, as a condition of graduation, to participate in an eight-day intensive “learn-by-doing” trial advocacy program. And because Emory draws students from across the globe, it is not unusual to see students from China, Mexico, Korea or countries in Europe, work from case files placing them in roles as advocates for the United States of America. For me, it is my tenth year teaching in the program. Founded 32 years ago, it is officially known as the Kessler-Eidson Trial Techniques Program in recognition of a grant given by Emory Law Alumni Mike Eidson and Richard Kessler. Eidson, a former President of the American Trial lawyers Association (now known as the American Association of Justice), represented the Kessler family in litigation stemming from the crash of a ValuJet airliner carrying Mr. Kessler’s wife, Kathleen. Eidson and Kessler allocated part of the proceeds of a settlement to fund the program and several scholarships in advocacy.

Legal services demand grows

While job openings with big law firms may be scarce, the actual demand by individuals for legal services continues to grow. And in an era where a licensed lawyer with a computer can establish a virtual law office, the Emory program is designed to equip students with the skills to go to work, if necessary, on their own, once they pass the bar. JC Lore, a Clinical Professor who heads the Advocacy Program at New Jersey’s Rutgers’ Law School, has made the pilgrimage to Atlanta each May for the past six years. “I am not aware of any other place that assembles such an impressive teaching team in one location,” says Lore. Bill Hunt, a Boston area trial lawyer, who has been one of the nation’s leading teachers of trial advocacy, has taught at Emory each spring for more than two decades. For Hunt, the Emory program is “the premiere program in the United States.” Professor Zelda Harris who heads the Advocacy program at Chicago’s Loyola University School of Law also makes the May trek to Atlanta.

Over three decades, the ranks of those that have endured the rigors of Kessler-Eidson are impressive. When and if the Boston Marathon bombing case goes to trial, the lead counsel for the United States Government will not come from nearby Harvard Law School, but will be an Emory alumnus who may have called his first witness during the Kessler-Eidson program. Other trial program and Emory Law Alumni include federal and state court judges, federal prosecutors, and leading plaintiffs and defense lawyers.

Who’s who

As for faculty, the program draws a stunning “who’s who” list of judges and trial lawyers including Cynthia Stephens, Emory Law alumnus Class of 1976 and a Michigan First District Court of Appeals Judge; Michael Washington, a California Superior Court Judge in San Diego County; Jack Nevin, a Washington State Superior Court Judge and a retired Brigadier General in the Army Jag Corps; Matt Williams, a Washington state District Court Judge; Betty Butchko, a judge of the 11th Judicial Circuit Court in Florida; Craig Iscoe, a District of Columbia Superior Court Judge; and George Hanks, a Federal Magistrate Judge from the Southern District of Texas. Bringing judges to the program allows students to see the practice of law from “the bench” as they learned during one discussion panel on ethics and professionalism in the court room. http://www.youtube.com/watch?v=tnjr__4r-LQ

A melting pot

The melting pot of faculty includes civil and criminal litigators and on the criminal side ranges from those who prosecute death penalty cases, like Emory Law alum and Delaware’s Deputy Attorney General Steve Wood, to Michigan attorney Roosevelt Thomas and Emory Law alum John Mauldin of South Carolina who have defended accused murders. While the faculty has always been geographically diverse, including Idaho Chief Federal Defender Dick Rubin, and Oakland County, Michigan Homicide Chief Prosecutor, Barbara Morrison, recent years have brought international faculty to the mix. With Emory Advocacy Center programs partnering with universities in Mexico and China, the Kessler-Eidson program, has added faculty from foreign jurisdictions. This step has marked a recognition that advocates must be trained to work in a global economy.

Students are divided into ten teams led by team leaders many of whom — like practitioners Bob VanderLaan, Bill Hunt, and federal prosecutor and Emory law alum Joe Newman — have taught generations of Emory law students. Others, like Emory Alums Matt McCoyd, a former prosecutor, and Liz Markowitz, a prominent Atlanta public defender, have tried several hundred cases to verdict between them.

Emory Law Professor Paul Zwier, who heads the Program and is the Director of the Law School’s Center for Advocacy and Dispute Resolution, presides over 8 AM faculty meetings where up to 60 practitioners and judges are briefed on the day’s teaching assignments. Zwier, former Director of Public Programs for the National Institute for Trial Advocacy has taught in hundreds of trial programs in the US and around the world. He has a global reputation in trial advocacy, and is an advocate for the importance of the teaching-by-doing approach and the need to “get students up on their feet,” so they can learn both what to do, and also how to deal with the emotions and adrenaline that often gets in the way of the lawyer’s advocacy.

Working off of case files, students study fact patterns and prepare their case from openings to closings. They play the role of advocate but they also take turns as witnesses.

For students coming off of final exams and who are used to studying law through the case method, the Kessler-Eidson program is a bit of culture shock. Students focus on the facts first and then match facts to law through oral advocacy. They practice direct examinations, cross examinations and opening and closings and receive critique from faculty members. While they have taken “Evidence” in the classroom, their hands on experience forces them to understand the real life application of the Rules. Video cameras are used to tape presentations and faculty members sit with students and evaluate performances during “video reviews.”

Classes begin before 9 AM each morning and end each day with a demonstration by faculty members. http://www.youtube.com/watch?v=JIw0MBaDx_Y With rare exceptions, Zwier warns faculty to keep to teaching and not to tell war stories, which are reserved for breaks, (or discussions each evening when faculty convene for dinner).

Three days into the program, the students are ready for their first bench trial. Once that is over they are given a new file to learn with only 48 hours to prepare the case for a jury. Local high school students are brought in to sit in as jurors. By the end of the week, Emory Law students will have collectively tried 150 bench and jury trials. They will be bleary eyed from lack of sleep but with a taste for trial work, many of them will have “caught the bug,” says Zwier, and will want to try cases after graduation.

As for what they have learned, Professor Zwier has these tips for students and practitioners:

Tip #1: Remember the lesson learned by the lawyer who represented a man, with a goat, accused of letting his goat get out to eat his neighbor’s cabbages. He argues, “First, my client doesn’t have a goat, but if he did, he didn’t let it get out, but if he did have a goat, and it got out, it would not have gone in the direction of the neighbor’s cabbage patch, because it doesn’t like cabbages.” The jury took almost no time to rule in favor of the neighbor with the cabbage patch. Defendants should focus on one factual theory when they are in front of a fact finder. Otherwise the implication of arguing multiple theories is to lose your credibility where you are weak, and admit the legitimacy of them all. In other words, pick a theory, unless you can unite your multiple theories under a unified theory: like “Rush to Judgment.”

Tip #2: When arguing for money damages, don’t ask for an award. You are not seeking to win the lottery, you are asking for money to compensate or make up for what has been done to the person harmed. By analogy, “the defendant has pushed the plaintiff under water, and held him under until he is almost drowned. Members of the jury, the question for you is whether it is time to compensate the plaintiff to not only bring him up to the surface but put him back in the race at a place where he was before the defendant’s wrongful act?”

Tip #3: When following a stirring opening statement take back the offensive. Use the technique of Ed Stein, famous medical malpractice defense trial lawyer from Michigan and say, “Wow that was quite a speech from the plaintiff’s counsel. But now I’m going to talk to you about what the evidence shows in this case. And the evidence will show that despite the plaintiff’s fancy words …” and then point out the strongest facts in favor of the defendant, that the plaintiff neglected to mention in the opening.

Tip #4: Front your bad facts. For example, if your client had a drink before getting in an accident, tell the jury about it in jury selection, [or the fact finder, early in your opening]. That way they will know you are not hiding it, or being defensive about it, and give you credit for trusting them to know about it. Often jurors are forgiving once they hear about the bad fact. If prospective jurors are asked if they can still be fair, and promise to wait and hear all the evidence, they can better focus their attention on the other parts of the defense, for example, that there was no proof of speeding, or any causal connection between the drinking and what happened in the accident.

Tip #5: Remember to Show and Ask, Don’t Demand and Conclude. Jurors will hold much more dearly to conclusions they reach for themselves, than any demands made on them by the lawyers.

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