Chapter 10 Preparing Your Energy or Natural Resources Case for Trial
| Jurisdiction | United States |
SHANNON H. RATLIFF is a Shareholder with Davis, Gerald & Cremer in Austin, TX. He has been trying complex cases for over fifty years in various jurisdictions in the United States. A significant portion of those cases involved oil and gas and other energy-related matters dealing with royalty and other lease disputes, and a dispute involving the mid-stream companies as well as disputes involving refineries and gas plants. During his long career, he has represented energy companies in class actions, multi-district litigation, and False Claims Act cases. His trial work has not been limited to Texas. He has tried cases in Oklahoma, Kansas, Colorado, New Mexico, and North Dakota. He has also participated in numerous arbitrations involving the energy industry. In more recent years, he has also participated in numerous arbitrations and mediations both as attorney as well as an arbitrator or mediator. He received the inaugural Outstanding Lifetime Achievement in Energy Litigation Award from the Institute for Energy Law and was honored by the Texas Bar Foundation as the recipient of the Ronald D. Secrest Outstanding Trial Lawyer's Award. He has received numerous other awards, honors, and recognitions. In addition to his practice as a trial lawyer, he has argued innumerable appeals and has argued more than fifty cases before the Texas Supreme Court. He is a Fellow of the American College of Trial Lawyers, the Litigation Counsel of America, and a member of the American Board of Trial Advocates.
MATTHEW J. SALZMAN is a Partner with Stinson LLP in Kansas City and co-chair of the Oil & Gas Practice Group. Matt is a trial lawyer who has successfully taken cases to trial in state and federal courts throughout the country. He also does appellate work and has won cases at every level, including several state supreme courts and the U.S. Supreme Court. He focuses on contract-related and environmental litigation and class actions, particularly in the oil and gas, financial services, and insurance industries. He has represented and advised exploration and production, midstream, pipeline, and refining companies in a wide variety of matters, from lease terminations and to right-of-way issues to major environmental spills and royalty class actions. Matt has assistant clients in the oil and gas industry all across the country, including in Kansas, North Dakota, Montana, Texas, Oklahoma, Colorado, New Mexico, Wyoming, Arkansas, Pennsylvania, and Ohio.
[10-1]
I. Introduction
Energy and natural resources litigation encompasses a broad range of disputes. There are traditional oil and gas upstream disputes, such as royalty litigation between mineral owners and exploration and production ("E&P") companies or working interest owners; lease termination disputes; right-of-way litigation; well operator and non-operator working interest owner disputes; and a whole array of oilfield service disputes. There are midstream and downstream disputes, such as gas plant construction disputes; operator/non-operator gas plant fights; dedication and long term supply contract disputes; and another array of service provider disputes in this and the refining sector as well. In addition to traditional oil and gas sector disputes, energy litigation includes disputes for solar, hydro, and wind projects, such as development disputes; surface use disputes; transmission and supply cases; and technology disputes. And environmental litigation comes into play in all energy sectors.
Further, energy and natural resources litigation often involves more complex legal theories than average cases, often involving both common law and statutory or regulatory issues. Even in cases that involve relatively simple legal theories, they often involve a more complex application. For example, the current climate change litigation is based, in part, on common law nuisance theories. Energy and natural resources cases typically involve a lot of industry jargon to decipher, and generally require counsel to obtain an understanding of the underlying operations in order to effectively argue the case.
This paper discusses various aspects of preparing such a case for trial. Part II addresses trial themes. Part III explores various aspects of evidence at trial - exhibits, witnesses (lay and expert), and demonstratives. Part IV focuses on motions in limine, while Parts V, VI, and VII respectively address opening statements, direct examination, and cross examination. Part VIII touches on the effective use of evidence, and Part IX focuses on closing argument. Finally, Part X discusses the jury charge. Although the paper begins with trial themes and ends with the jury charge, those two components of a case are inextricably intertwined. They should both be a focal
[10-2]
point of the case from the outset, and be frequently reevaluated throughout the case as new information comes to light. Doing so provides purpose and direction throughout the case and allows (almost forces) discovery to develop the evidence needed at trial.
Unlike the typical well-researched and footnoted Foundation paper, this paper is largely based on the authors' experience in trying numerous cases in various states around the nation. An entire book could be (and some have been) written on each of these topics. Instead of being exhaustive, this paper addresses certain aspects of each topic that, in the authors' experience, can be the difference between an effective trial and an ineffective one.
II. Trial Themes
Perhaps the most important aspect of preparing your case for trial is to develop your trial theme. The fundamental purpose of a trial theme is to explain to the jury why you should win. Trial themes give meaning and purpose to the evidence. They provide the lens through which you want the jury to view the evidence. Adhering to your trial themes helps focus and streamline your evidence to make it more understandable to the jury. Seasoned trial attorneys begin preparing their trial themes the moment they get the case, and use it to provide both meaning and focus for discovery and motion practice throughout the litigation. Trial themes (along with the jury charge discussed below) should be continually reexamined and refined as discovery and the case progresses and more information becomes available.
Ideally, a party will have only one trial theme for each case. In certain cases, it may be necessary to have multiple trial themes; however, complexity dilutes the power and persuasiveness of your case. Typically, even a very complicated case will have no more than three trial themes. The number of trial themes should be guided by the evidence. If all of the evidence "fits" into one theme, then use one theme. If there is certain evidence that you need for your case that does not fit within your trial theme, and such additional evidence is of such significance or magnitude as to merit its own thematic explanation to the jury, that is when an additional, complementary theme may be appropriate. In such instances, it is often best to have one dominant theme that is supported by one or two more minor themes. That said, it is preferable to have only one trial theme, even if not all the evidence fits within it (as long as none of such evidence runs counter to the theme). The jury certainly would appreciate it.
The theme itself should be straightforward, commonsensical, and appealing to the jury's basic sense of right and wrong. For example, in a case involving double-billing by a service company, the plaintiff's theme might be that there is only one word for tricking someone into paying you twice for the same work: "stealing." In cases that rely on oral contracts, a common, effective theme is that a person's word is his/her bond. In cases against operators, a common trial theme is with power/control comes responsibility. Depending on the issue in dispute, a common theme from operators is that their responsibility includes treating all interest owners fairly and not succumbing to the desires of one to the detriment of others. A complicated, multifaceted trial theme will be harder for the jurors to grasp and remember throughout the trial and, thus, is less likely to be the filter through which the jury actually views the evidence as it comes in. The evidence itself is bound to be complicated enough. Your theme should help the jury simplify it.
[10-3]
Consider using mock juries to test your trial themes. Mock juries not only provide a chance to practice presenting the themes in the context of the particular facts of the case, they also provide an opportunity to receive unbiased feedback as to the effectiveness of your themes. But note, while mock trials can be useful for testing whether jurors are receptive to trial themes in the context of a particular case, they are not necessarily good predictors of trial outcomes. Furthermore, clients may not want to incur the expense of a professional mock jury. In such circumstances, mock juries often can be conducted using other lawyers and staff from your firm. Often the most helpful feedback comes from the staff, as long as they feel free to criticize the presenting lawyers.
III. Putting Together Your Evidence
A. Exhibits
Compiling an exhibit list for trial should begin by reviewing the elements of the claims and defenses as set out in your proposed jury charge and making sure you are presenting evidence to prove each element of your claim(s) or defense(s) and to disprove one or more elements of your opponent's claim(s) or defense(s). If the exhibit does not go to an element of a claim or defense, then it should at least be supportive of your trial theme. If not, think twice about listing or proffering it. Each piece of evidence should have a purpose, and juries generally can tell when they do not. Impeachment might...
To continue reading
Request your trial