Previous Minnesota Litigator “Tales from the Trenches” posts have been first-person narratives — mundane trials and tribulations of LEVENTHAL pllc.
This trench-tale is second-hand.
Last week, the trial of C.H. Robinson Worldwide, Inc. v. XPO Logistics, Inc., et al., started before Hennepin County District Court Judge Ronald Abrams. C.H.Robinson claims misappropriation of trade secrets and violation of its non-competition agreement by several individuals and XPO, the corporate defendant.
One defendant invoked the Fifth Amendment in response to particular questions posed to him and this has complicated the case. As civil litigators know, the fact that someone invokes the Fifth Amendment can be brought to the jury’s attention and courts often give the jury an instruction about it. The court tells jurors that they can draw an “adverse inference” when a witness refuses to answer a question in a civil trial by invoking the Fifth Amendment.
On the other hand, there is some tension between one party’s Fifth Amendment rights and other parties’ rights to a fair proceeding, so courts have held that there are certain limits on when a court in a civil case may give an adverse inference instruction that accompanies a witness’s invocation of the Fifth Amendment. Also, courts must craft the specific words of the adverse inference instruction with care.
At the start of the C.H. Robinson v XPO Logistics trial, the dilemma of how to handle one party’s taking the Fifth was unresolved. The various lawyers were not on the same page as to how to proceed. So when Plaintiff’s counsel nevertheless made a reference in his opening statement to the jury to a court instruction about the adverse inference, other lawyers objected, and this resulted in the judge finding a mistrial.
So much for day #1 of what was expected to be a three-week trial.
A new jury was sworn in, a new trial started, the lawyers managed to make it through their opening statements without another mistrial. But then, defense counsel claimed that the Plaintiff ambushed the other side with a brand new damages theory at trial with Plaintiff’s first witness. Defendants moved for a second mistrial.
As of the time/date of this post, the Court has not decided this second mistrial motion.
As we have written before, trial lawyers are like theater directors directing a play with untrained actors, no dress rehearsal, a single performance (normally), an audience who really, really, really does not want to be there (the jury), and adversaries who are like scheming stage-hands doing all they can to sabotage the production. Meanwhile, at the same time, their adversaries are putting on a different show, roles reversed.
Courts have the overwhelming task of presiding over these whacky amateur joint productions. The result, of course, is supposed to be as close as we can get to “justice.”
The surprises, twists, and turns in C.H. Robinson v. XPO Logistics, Inc. are extraordinary, but there are twists and turns in every trial.