June 26, 2017 | Source: Scott Graham, The Litigation Daily, May 25, 2017

Litigators of the Week: When Your Client is a Retired Judge, You Better Bring Your A Game

Joseph McMonigle has been trying cases for 40 years at San Francisco’s Long & Levit. He and partner Jessica MacGregor have never had one quite like Kinsella v. JAMS.

Defending JAMS Inc. and one of its neutrals over resume padding charges, the litigators soldiered through an unconventional three-week trial in San Diego Superior Court only to be faced with a possible jury deadlock. But with some adroit maneuvering, the litigators kept deliberations alive and ultimately obtained a defense verdict.

The stakes were high and not just for JAMS. “We felt like we were representing ADR generally and the retired judges who provide those services,” said McMonigle, who’s counted JAMS as a client for 12 years. Nevertheless, all three members of Long & Levit’s team, including associate Andrew Massara, got substantial face time with the jury.

“If you’re at counsel’s table, you’re going to examine witnesses. That’s one of the things we pride ourselves on,” McMonigle said. “Our experience is the jury wants to hear from everybody.”

MacGregor was tasked with examining retired appellate justice Sheila Sonenshine. Plaintiff Kevin Kinsella accused her and JAMS of misrepresenting the business achievements on her resume, causing him to retain her to preside over his marital dissolution. One challenge was that by law, Sonenshine was forbidden from testifying about the divorce case. Instead, MacGregor walked Sonenshine carefully through her business accomplishments “in the context of her whole, very remarkable career.”

Sonenshine was an appellate judge in California for 17 years before leaving in 1999 to co-found an investment bank and later what she describes as a private equity fund. She joined JAMS in 2008.

MacGregor also handled evidence, which turned out to be hotly contested. She lodged many dozens of objections over the course of the trial, frequently succeeding in keeping out material JAMS considered prejudicial.

There’s “an old-school thought” that too many objections – even if meritorious – can turn a jury against a party, McMonigle said. “That’s how I grew up trying cases. I think it’s changed.”

“It is a concern,” MacGregor said. “But I do think juries understand” that everyone has to play within the rules.

Practice Area: Lawyers & Judges Defense Group

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