by Thomas G. Beatty

        I've always encouraged my associates to find at least one interesting jury appeal angle to present in a litigated case. Sex or money are the two angles juries seem to love the most, and yes, the sex angle is number one. When a case contains sexual issues, jurors never fog over, never nod off, and the alternate jurors never get to slide over into the real juror seats.

         In my regular handling of the defense of civil rights and sexual har-assment cases for school districts, I am provided with a wealth of opportu-nity to develop these themes and maintain juror interest. However, not all civil cases present such issues so openly.

         A few quick examples illustrate this easily grasped concept. A few years back, I represented the City of Oakland in a slip and fall case which resulted in three ankle surgeries, and ultimately a fusion. Boring enough to start with, right?

         But the plaintiff was a non-credentialed sex education instructor for the District, and her wage loss claim was prodigious and allegedly of lifelong significance. Curious about how a fused ankle impacted her ability to teach the basics of sex education, plaintiff desperately and incongruously blurted out that she could no longer demonstrate the use of condoms with banana exemplars, nor could she kick a mock assailant and rapidly flee the class-room in role-playing skits involving date rape.

         The seriousness of birth control/disease prevention/date rape issues aside, the assertion was ludicrous. The cross-examination about how ankles were involved in the banana demonstration had the jury in hysterics, always a good sign if you're wearing the defense cap.

         Needless to say, little else in the trial mattered. Bananas dominated the jury discussion and certainly were the most commonly discussed fruit during closing arguments. The jury disbelieved everything plaintiff said before and after the discussion of protecting one's fruit.

         Sometimes the sex angle doesn't fall from the sky like pennies from heaven; you have to develop it. I always like to cross-examine the hapless loss of consortium claimant in small auto cases for forever and a day. The asininity of their presenting the post-injury restricted sexual positions and their diminishment in quantity of intimate liaisons (twice a day before the accident, now never ... and only then with pain) dominates my defense. Juries routinely blot out the claim of the poor guy with the neck sprain, focus on their own sex lives, determine that plaintiffs "have it pretty good" and award negligible verdicts. (Helpful practice hint: Save consortium claims for your paralysis or limb loss cases.)

         Sometimes you just get lucky. In a particularly hard fought peer on peer sexual harassment case involving school children that I tried last year in Federal Court before Judge Marilyn Patel, the most egregious comment of Bad Boy Number One was read into the record on the fifth day of trial before a substitute court reporter. The reporter was unfamiliar with the case and the litany of nasty comments made by the offending young men, so she was shocked at the content, yet baffled by the bizarre slang terminology when the witness read: "He said, "Suck my ___ ___ ___ you ___ ___ ___," to which the shocked and baffled reporter asked aloud, "What?"

         The filthy exhortation was repeated, to which the now utterly shocked and wholly baffled CSR asked, "WHAT?" After the third repetition, the jury began tittering, and when she asked for the spelling of some of the more colorful terms, the jury started laughing.

         I truly believe, at that moment, the jury recognized the outrageous-ness of the claim that these nasty young men were miserably harassing the young female plaintiff with the knowledge, consent, encouragement, etc., of the Superintendent of Schools and the Principal, my two clients, or that my clients were deliberately indifferent to the harassment.

         There was no way, however, for me to introduce sex or money in a plaintiff's case I tried a few years ago. My various clients sued Caltrans, BART and an engineering contractor for design failures in underground water culverts which led to widespread flooding of commercial premises. Damages were bifurcated, so we tried the case for over two months without a hint of the money issue embellishing my case, and I defy anyone to find sex in concrete culvert conveyance capacities and rainfall gauge analysis.

         Now I know that as soon as I say that, half of this story’s gentle readers are stretching the limits of their deviant minds for perverse analo-gies, and to those I say, "Shame! Get your minds out of the culvert!"

         But, as fortune would have it, midway through trial involving the most tedious, mathematical, propeller-headed engineering testimony you can imagine, the State of California called a witness to discuss the project planning from date of inception to the date of the great flood. I was bored. The jury was becoming catatonic.

         The Caltrans project manager described the "partnering process"; how well-planned the multi-governmental project was, and how everyone was a team member. By God, they even had a Mission Statement! Like I or anyone else in the room cared, thank you very much.

         I guess the point was either (1) that the project was so well planned that one should forgive a little glitch like properly hooking up culverts under the freeway during the rainy season, or (2) that since many governmental entities planned together so well, perhaps they all should share the liability for planning this disaster.

         Either way, out popped Exhibit #1000, in six foot by eight foot splen-dor! What a number! (What piles of paper we had getting to #999!) Anyway, here is the Mission Statement read aloud to the jury. Read it aloud, please, kind reader:        

        I, of course, interrupted the reading that used the expected word "public" with an objection! "Misstates the document!" When I had every-one's attention, I declared that the document declared that parties wanted to maintain a good pubic image, not a good public image. Alameda Supe-rior Court Judge Michael Bellachey nearly fell out of his chair. The humor started the jury roaring. The witness was befuddled and the poor Caltrans attorney wanted to die. I callously offered him a red pen so he could insert the "l" in "pubic" where it belonged, which he did, which led to so much more laughter that Judge Bellachey wisely invoked an early recess. (Jurors were commenting that the "new 'l' was 'too short', 'not straight,'" and it degenerated from there.)

         From then on, the case was ours. We were litigating against the Gang That Couldn't Shoot Straight.

         It turns out 144 members of the "team" got keychain-type embossed Mission Statements as participation gifts for being at the planning session. No one ever noticed the wording problem, and, so too the analogy went, no one ever noticed or paid attention to an essentially disconnected storm water conveyance system that poured 60 million gallons of water onto my clients' properties in the first three hours of the first big storm of the season.

         "They couldn't even get their Mission Statement right," laughed several jurors, explaining their plaintiffs' verdict.

         $4,850,000 later, my record was still intact. I could, with a straight face, still tell my associates: Look for the angle. There's a sex and money issue in every case. Find it and have fun!

Thomas G. Beatty is managing partner of the 60 attorney firm McNamara, Dodge, New, Beatty, Slattery & Pfalzer LLP of Walnut Creek and Fairfield, California.