1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 IN RE SEPTEMBER 11TH LITIGATION 21 MC 97 3 4 ------------------------------x 4 New York, N.Y. 5 September 11, 2007 5 2:30 p.m. 6 6 Before: 7 7 HON. ALVIN K. HELLERSTEIN 8 8 District Judge 9 9 APPEARANCES 10 10 MOTLEY RICE 11 Attorneys for Plaintiff 11 BY: RONALD L. MOTLEY 12 DON MIGLIORI 12 MICHAEL E. ELSNER 13 MARY F. SCHIAVO 13 JUSTIN B. KAPLAN 14 14 U.S. DEPARTMENT OF JUSTICE 15 Attorneys for TSA, FBI, USA 15 BY: BETH GOLDMAN 16 SARAH SHEIVE NORMAND 16 17 17 KREINDLER & KREINDLER, LLP 18 Attorneys for Plaintiff 18 BY: MARC MOLLER 19 20 BAUMEISTER & SAMUELS 20 Attorneys for Plaintiff 21 BY: DOROTHEA M. CAPONE 21 22 22 CONDON & FORSYTH, LLP 23 Attorneys for Defendant 23 BY: DESMOND T. BARRY, JR. 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 79BUSEPC 1 Appearances (Continued) 1 2 DEBEVOISE & PLIMPTON, LLP 2 Attorneys for Defendant 3 BY: MAURA MONAGHAN 3 4 SIMPSON THACHER & BARTLETT, LLP 4 Attorneys for Defendant 5 BY: JOSEPH F. WAYLAND 5 6 6 QUIRK AND BAKALOR, P.C. 7 Attorneys for Defendant 7 BY: JEFFREY J. ELLIS 8 9 SUSSMAN GODFREY 9 Attorneys for Defendant 10 LEE GODFREY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 79BUSEPC 1 (In open court) 2 THE COURT: We have a long agenda, but before we get 3 into it, I don't want the moment to pass of moving directly to 4 business on September 11, 2007. It is six years to the day 5 when the tragedy of September 11 occurred. 6 I have read some of the newspaper comments criticizing 7 the Court's efforts and perhaps also the lawyers' efforts in 8 transmuting the national tragedy and the 3,000-some-odd 9 personal tragedies of 9/11 into an issue of money. 10 The dignity of each person is precious. Each person 11 in the world's great religions is considered to have been 12 created in the image of God, and the snuffing out of lives en 13 masse in such a senseless destructive act is a crass intrusion 14 on the fabric of civilization which holds us all together. 15 Notwithstanding the work we do -- maybe because of the work we 16 do -- it is important not to forget this basic aspect of 17 humanity which the terrorists tried to erase. 18 And I don't want this moment to pass without our 19 thinking on this and giving it a special purpose in the kind of 20 work that we are doing. We consider the job of the lawyers to 21 be part of a helping profession because, whether we are 22 plaintiffs or defendants, lawyers or judges, our work very much 23 involves the ability of society to reconstruct itself after 24 tragedy, after wrongs, after slights and difficulties and to 25 get on. Notwithstanding the memories of this day, it is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 79BUSEPC 1 important for all of us to get on. 2 In my religion it is a time also to visit cemeteries, 3 not to bring us into the realm of that which was, but to give 4 respect and to gain strength in getting on and living our lives 5 and in trying in some way to enrich the world with what we do, 6 whether it be making our client's positions a little better, 7 whether it be in the way of helping to construct and distribute 8 justice or whether it is closing up the wounds in some fashion 9 and getting on. 10 I was inspired to try this technique that we will be 11 talking about today of a damages-only trial because it was 12 necessary to get on. No matter what we suffered, no matter 13 what tragedy engulfs our lives, we are given a choice. Choose 14 life we are told when we read the Bible, whether it is a 15 Christian Bible or a Jewish Bible or an Islamic Bible. Choose 16 life. And life in our society and life in this courtroom means 17 to get on, to settle a case, to obtain a determination of a 18 case, to find out in an appeal whether one is right or wrong, 19 but to get on. 20 And so six years after the event, I thought it was 21 important that we get on, and we find a way to break through 22 the impasse that, where settlements were too difficult to be 23 reached, that there had to be a way to create some method, some 24 idea, some inspiration to find a different meeting point and, 25 if no meeting point, to make progress towards the ultimate SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 79BUSEPC 1 determination of these cases. 2 The solution that I suggested of a damages-only trial 3 creates numerous problems, many of which, in my experience, 4 have not been encountered in a courtroom. But the alternative 5 of giving in to the problems and delays and impasses in the 6 world of sensitive security information is the way that I found 7 unacceptable because, in many respects, it is a surrender to 8 difficulty. And so this may be a way, not a popular way, not a 9 way free from criticism, but a way to get on. 10 That's my message for 9/11. 11 And rather than shy away from this anniversary of this 12 terrible event, I think it is fitting that we use 9/11/07 as a 13 point to move on, to find the best possible way to move these 14 cases toward a determination. And I hope that what we do is 15 consistent with that spirit and will rise to a fine and 16 proudful time in all our experiences as lawyers, as judges, as 17 reporters, as members of the public, as people who suffered the 18 tragedies. 19 With that, we will go to our agenda and, as is our 20 custom, go through the points in the way they have been 21 proposed to us. 22 First, the status of the discovery proceedings. We 23 will talk about the discovery proceedings in relationship to 24 the damages-only trial. That will be first, Driscoll. 25 Mr. Migliori. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 79BUSEPC 1 MR. MIGLIORI: Thank you, your Honor. 2 And on behalf of my clients, thank you for the 3 thoughtful prefatory comments. 4 THE COURT: I think it might be better if you took the 5 microphone. 6 MR. MIGLIORI: Thank you, your Honor. 7 I just was saying that I want to thank you on behalf 8 of my clients for your prefatory and thoughtful comments on the 9 dignity of those who suffered loss on September 11. 10 With respect to the Driscoll case, we have undertaken 11 substantial discovery on both the fact and expert witness 12 level. We have begun the expert depositions which were 13 staggered to begin after fact witnesses. We still have a few 14 remaining fact witnesses over the next seven days. There may 15 be some rescheduling to accommodate other issues that are 16 picking up but, as of right now, every fact witness that we 17 have identified has been made available at a certain time, and 18 we are working out cooperatively the best way to get those 19 depositions taken in the best locations. 20 On the expert side, there have been some questions 21 raised that involve the government, and we were able to talk 22 before the hearing today about access to certain information 23 for the benefit of our expert depositions, our plaintiff expert 24 depositions. For example, the Court invited us to get an 25 expert disclosed and a report out by the end of this week. We SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 79BUSEPC 1 were able to retain an expert. Paris Michael will be serving 2 as an expert with respect to the data recovered from Flight 93. 3 But one of the things that we would need and we are 4 working out with the government is, hopefully, the opportunity 5 for all experts who may have and will be relying on the flight 6 data recorder information and the cockpit voice recorder for 7 Flight 93, we would like to work out some system of having 8 those experts, at least once or twice -- again, both sides -- 9 see and hear what the Court is likely to admit into evidence so 10 that their depositions can be more efficient and not have to be 11 kept open. Again, we think that that process can be worked out 12 cooperatively without the Court's involvement, but we wanted to 13 keep you updated on that process. 14 So from the plaintiff's side, your Honor, I think 15 everything that needs to be done is scheduled within the time 16 framework that will not cause delay for the September 24 17 beginning of voir dire, and that we have been successful with 18 defendants in setting schedules and expectations that are 19 reasonable. 20 Counsel has asked that we switch one of our experts 21 who is in Portland, Maine -- his deposition is set for Monday, 22 Dr. Richard Levy -- have that switched from Maine to New York. 23 And I have learned today that, because of a recent 24 surgery, he has asked that it be maintained and stay in 25 Portland and so, like every other deposition, we are going to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 79BUSEPC 1 the location of the experts, and we won't be able to, for 2 Monday, accommodate that for medical reasons. And privately or 3 separately we can go into the facts of that, but we did try to 4 make that accommodation; it just did not work out. 5 With respect to an accommodation to move Deena 6 Burnett's -- 7 THE COURT: Would Boston be an alternative? 8 MR. MIGLIORI: The problem, your Honor, has to do with 9 how much medication he has to take to travel any long distance, 10 and it literally knocks him out for a period so he would have 11 to, for purposes of trial, come a few days early just to get 12 that metabolized and out of his system in order to be able to 13 testify the day of trial. So Boston may be difficult as well. 14 I can ask on that issue, again, more than happy to. 15 And, again, everyone has been cooperative in the scheduling of 16 depositions, but right now, I don't think that I can say yes to 17 it. 18 Otherwise, unless defendants have another issue about 19 plaintiffs' experts or fact witnesses, I think that we are on 20 track and nothing should cause delay. 21 THE COURT: Mr. Wayland. 22 MR. WAYLAND: Your Honor, may I approach? I would 23 like to hand you a list of the witnesses who have been deposed 24 and who are scheduled, and I think that it might be helpful if 25 we go through this. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 79BUSEPC 1 THE COURT: Yes. 2 MR. WAYLAND: Your Honor, with respect to the 3 depositions and remaining discovery, I agree with Mr. Migliori 4 that we are making progress, whether it is enough progress to 5 expect witnesses to be called on the 25th, I don't know. We 6 will make our best efforts. 7 The completed depositions so far include Ms. Driscoll 8 and two of her children. 9 Mr. Linner who was a family friend, and the expert for 10 plaintiffs who purports to be an expert on terrorism and 11 history of Al Qaeda, his deposition was completed just 12 yesterday. 13 The remaining depositions include, and we have listed 14 the dates as well. 15 Deena Burnett who is to be called for the purpose of 16 talking about the phone call she had with her husband; 17 Dr. Stan Smith, the plaintiff's economist, and that 18 deposition is scheduled for this Friday. 19 Ms. Burnett is scheduled for Thursday. 20 Dr. Levy, who is the plaintiffs' pre-impact fear 21 expert is to be deposed, as Mr. Migliori said, on the 17th in 22 Portland. It presents a very difficult situation for us to get 23 there, but we will work with them. Maybe we can delay it to 24 start later on Monday. It is very difficult for us to get 25 there. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 79BUSEPC 1 THE COURT: It is two flights, essentially, and very 2 few schedules. 3 MR. WAYLAND: It is a problem, and we are in the midst 4 of trying to do these other things. 5 THE COURT: If you can do it at Logan, it might make 6 sense. 7 MR. WAYLAND: This is the very first time that we 8 heard about the medical condition, and I am sympathetic to the 9 medical condition, but I am also sympathetic to our schedule. 10 Let me see if we can work something out that would accommodate 11 everybody's needs. In any event, it is not scheduled until the 12 17th, which is Monday. 13 Lisa Jefferson, like Ms. Burnett, has information 14 about conversations -- 15 THE COURT: I just want to say, mindful of the amount 16 of effort that has to go into this, Mr. Migliori, if it is at 17 all possible for Dr. Levy to travel by car to some suburb of 18 Boston or Logan or anywhere in that area, I think that it would 19 reduce the inconvenience of all concerned, including your end. 20 You don't need to respond, but if it could be done, that would 21 be very helpful. A hotel in the Boston area, I think, would 22 save a lot of extra effort. 23 MR. MIGLIORI: We will do what we can, your Honor. 24 MR. WAYLAND: Your Honor, just to continue the rest of 25 the witnesses and the dates, Lisa Jefferson spoke to Mr. Beamer SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 79BUSEPC 1 on the flight. Her deposition is scheduled also for Monday. 2 That is to take place in Chicago. 3 So as you see, we have a deposition in Little Rock on 4 Thursday, Chicago on Friday, somewhere in New England on Monday 5 and then Chicago on Monday. 6 Then to be scheduled yet, we just this week or at the 7 end of last week were given possible dates for Lorne Lyles who 8 also has information about conversations on the flight. And 9 the dates that were given to us are the 19th and 20th, which 10 are Thursday and Friday of next week. 11 As you know, there is another expert whose report we 12 need to receive and whose deposition needs to be scheduled. 13 We have an issue as to whether or not we need a 14 government witness on the cockpit voice recorder and the flight 15 animation that we looked at in chambers, and we were working 16 with the government to find out what might be done on that 17 score. 18 And we need to schedule defendant's experts. We 19 expect to have two experts who will be submitting reports, and 20 they will need to be scheduled as well. 21 So as you can see, your Honor, between now and the 22 hoped for trial date, we have nine or ten witnesses who still 23 need to be deposed, all of which can possibly be done in two 24 weeks, obviously, and we are hoping to do it. 25 What complicates the scheduling is that there are a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 79BUSEPC 1 number of motions that need to be made, and some of the motions 2 that need to be made depend on testimony that is going to come 3 at these depositions. So, for example, Dr. Levy, who is their 4 pre-impact fear expert will have his deposition taken on 5 Monday, which is the day that we are actually supposed to 6 submit motions in limine. And, clearly, the flight data expert 7 we are not going to hear from until later. So it adds 8 complications to scheduling. They are not insurmountable, but 9 they are out there and we have a lot of work to be done and not 10 a lot of time to do it. 11 THE COURT: What can the Court do to accommodate it? 12 MR. WAYLAND: I think, as we move down the agenda, 13 your Honor, we need to consider what has to be done before we 14 get to trial. We need to deal principally with finishing the 15 depositions and discovery. We need to get their reports and 16 their depositions done. Then they need to get our reports and 17 take the depositions of our two witnesses. 18 On the original schedule, our expert reports were 19 actually due yesterday, but because they now have to provide us 20 another expert report on the subject for which we were planning 21 to submit a report, we delayed that. And also because we 22 couldn't take the deposition of their expert next week, our two 23 reports won't come until next week and won't be scheduled -- 24 THE COURT: Have you thought that the experts might 25 not be necessary? Is it necessary to have extra experts, extra SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 79BUSEPC 1 witnesses? 2 MR. WAYLAND: We have two witnesses. We have no fact 3 witnesses. We have two experts -- one expert on flight 4 dynamics, one expert who is a medical doctor and also a pilot 5 to respond to Dr. Levy. That's it. That's our case, but they 6 need to get their reports and we need to take their 7 depositions. 8 We expect to move on motions in limine to limit some 9 of the testimony of the persons whose depositions we have yet 10 to take, including Ms. Burnett, Mr. Jefferson and Mr. Lyles on 11 the ground that these conversations shouldn't come in or should 12 be limited for other reasons. 13 At the end of the day, the trial may not be as 14 expansive as the witness list suggests. I think that it is 15 going to be a very narrow trial, but there is a lot to be done 16 before we get there. It is actually less than you would 17 experience in most trials. The issues are relatively narrow. 18 We just need time to get them done -- not saying that we can't 19 get it done by the 24th. I just want to alert your Honor to 20 the number of things that have to be done before we get there. 21 THE COURT: Mr. Migliori. 22 MR. MIGLIORI: Your Honor, I think that the last 23 comments by Mr. Wayland may have covered what I wanted to say. 24 This isn't a new revelation. We have worked these issues out, 25 and we actually have a very manageable schedule. The dates SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 79BUSEPC 1 made available have been to accommodate schedules. And by the 2 end of next week, all of this work, including expert work, is 3 done. 4 I remind the Court that, under the current thinking, 5 the 24th is voir dire. And if we are able to get that done, 6 the 25th would be openings. And the next and first evidentiary 7 date wouldn't be until October 1st. 8 THE COURT: There may be witnesses also after the 9 openings. I am assuming that your openings will not be so 10 extensive that we couldn't have a witness or two. 11 MR. MIGLIORI: We can prioritize that, like in any 12 other trial, and make sure that issues that may need further 13 investigation are worked on constantly through this process. 14 Many of the in limines, for example, can be handled on track 15 even without depositions because there are specific issues that 16 don't relate to what was said as much as foundational issues. 17 And as we were able to do with the cockpit voice recorder, a 18 lot of that is just sitting in the room and working it out with 19 the Court. So there is nothing from the plaintiffs' side that 20 suggests to us that we cannot be up, running, fully ready to 21 put on a first witness or two on schedule. 22 THE COURT: I want both sides to know that if they 23 need time next week, to ask. I will try my best to be 24 available to you. 25 MR. MIGLIORI: In that, your Honor, I don't know if we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 79BUSEPC 1 are going to the next point, but the next point is something 2 that Mr. Wayland raised and we would like to raise. 3 The reports of their two witnesses were due yesterday. 4 This is the first that we heard that they have decided that 5 they won't produce them until next week. We would like them 6 produced. And we will allow them to supplement them should 7 something happen during the depositions on Friday and Monday, 8 but we would ask that they produce pursuant to the schedule 9 with leave to amend them if something should come up. 10 THE COURT: Who are these two experts? 11 MR. WAYLAND: Your Honor, we have two experts. One is 12 Dr. Hanson. He is a physicist and a flight expert. He has 13 testified in a number of cases about what happens on airplanes. 14 He is a consultant to NASA and to the TSA, as I understand it, 15 and his testimony will cover the issues we talked about in 16 front of your Honor in the in camera session relating to the 17 dynamics of flight, interpretation of the flight recorder. 18 And as we now know, Mr. Migliori plans to have a 19 witness on that. As normally is the case, plaintiff produces 20 their expert, has a report, and our expert response to his 21 report is fairly promptly. He has done a fair amount of work 22 and can respond promptly. 23 THE COURT: Who is your expert? 24 MR. MIGLIORI: We are waiting on this one governmental 25 expert issue, which is, if our expert and their expert can hear SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 79BUSEPC 1 the material at least once through, then a full report can be 2 made. But our expert's report will be ready within the next 48 3 to 72 hours. 4 THE COURT: When will yours be ready? 5 MR. WAYLAND: 24 hours after that. We have a second 6 expert who will respond directly to Dr. Levy. Dr. Levy's 7 deposition is Monday. I think probably within 48 hours we can 8 respond. 9 MR. MIGLIORI: That is fine too. 10 Just for the record, I think it is just a matter of 11 five witnesses between now and to get done. 12 THE COURT: I appreciate the efforts on both sides. 13 They have been considerable. 14 I guess the next item is 1C, identification of 15 defendants' facts. 16 MR. WAYLAND: I think that we have covered No. 1, your 17 Honor. 18 MR. MIGLIORI: If I may for the record, we have heard 19 that defendants have two witnesses, and I just want to make 20 sure that I understand that all witnesses, fact or expert -- it 21 will just be two witnesses? 22 MR. ELLIS: Pending close of discovery from the 23 plaintiffs, yes, we anticipate only two witnesses. It is not 24 our intent to make this a long trial. 25 MR. MIGLIORI: The disclosure for that has already SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 79BUSEPC 1 come and passed. I just want to make sure -- 2 THE COURT: I think it confirmed that. 3 MR. MIGLIORI: Thank you. 4 THE COURT: One of the aspects of expertise has to 5 deal with the authentication of the cockpit voice recorder as 6 enhanced. The second is the graphic illustration of the last 7 31 and a half minutes of the flight. And I think counsel are 8 looking to the government to make available the witness who 9 authenticated those documents in the Saudi trial. 10 MS. GOLDMAN: Your Honor, we have been talking to the 11 parties about this. We are hoping to be able to resolve the 12 authentication problem without the witness. 13 THE COURT: I would hope that we would not need a 14 witness at trial on this issue. And I asked counsel to work 15 with Ms. Goldman to see if they could have their questions 16 answered in that fashion so that authentication will not become 17 an issue and Will not require a witness. 18 Thank you. 19 MR. MIGLIORI: If I may, your Honor, on 20 authentication, with respect to the government, just so that 21 the Court is aware, there are no actual documents in the 22 government's custody, statements and the like, that we are 23 seeking to have authenticated outside the jury's presence in 24 the same or similar manner, just to make sure that there won't 25 be any such problems once we start trial. And Mike Elsner is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 79BUSEPC 1 working with the U.S. Attorney's office on that. Beyond the 2 cockpit voice recorder, there are actually some documentary 3 issues on authentication that we are trying to work out. 4 THE COURT: So we are down to motions in limine, and I 5 haven't scheduled this with you, so what should we do? 6 MR. MIGLIORI: Your Honor, I think it is the August 7 3rd order that you entered -- 8 THE COURT: Maybe I did schedule it. 9 MR. MIGLIORI: -- I think that we anticipated that we 10 would try to get some preliminary jury instructions on the 11 17th. 12 THE COURT: I am thinking about having to rule on 13 various evidentiary issues the way I did this past week. 14 MR. MIGLIORI: In the original version, the iteration 15 of this order, that deadline also included motions in limine, 16 and I think it dropped off. 17 THE COURT: I would like to suggest something to you. 18 I know what we did in the last two days was useful, I think, to 19 me and to you. As you are ready on a particular issue, give it 20 to me. I don't know that we need briefings on these either. 21 There isn't the time to do the briefing and review the briefs 22 and exchange briefs and so on. So I am available to you, and 23 as of when you have these evidentiary issues, see me, call me 24 up and I will make time for you. 25 MR. MIGLIORI: I think, your Honor, a lot of such SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 79BUSEPC 1 motions will be as simple as how you refer to a particular 2 person, party, defendant. So they are one-sentence motions in 3 limine. 4 And maybe just to set some expectations -- I know that 5 we have a list that we would like to submit. They probably 6 could be ruled on the papers, or we can set a time at the end 7 of next week to do it, but we would like to not brief it but 8 send a list of concerns in that regard. And I don't know if 9 you want to agree on scheduling for that. 10 THE COURT: You should work this out between 11 yourselves, those things without involving me. I am thinking 12 of evidentiary issues the way that Mr. Wayland or Mr. Ellis 13 mentioned -- I forgot who. There is going to be testimony 14 which I am not sure how it is going to be offered, but it is 15 going to be a contemporaneous report of some event that is 16 going on inside the cabin. And I think the defendants are 17 likely to object. And those kinds of things will need my 18 ruling because what I rule will very much be the basis for 19 other things you might want to do or not do. As of when you 20 are ready, tender the issues to me. 21 MR. MIGLIORI: Only because we are all going in so 22 many different directions at the same time, I also know that, 23 without a date and some expectations that we may be in front of 24 you on a particular moment, we will get busy in other aspects 25 and that will fluctuate. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 79BUSEPC 1 We will submit to them a list and, hopefully, we can 2 get it resolved, and then we will take the Court up on its 3 invitation and seek your involvement, if necessary, next week. 4 But I would like to have an anticipation that next week we 5 begin, at least on the global issues that carve down or pare 6 down future eliminations. 7 THE COURT: What is the Daubert issue? Who put this 8 on the schedule? 9 MR. ELLIS: It is unclear. We will wait until we hear 10 the testimony of the expert. We put that on there to alert you 11 of that possibility. 12 THE COURT: We are down to No. 3. 13 MR. MIGLIORI: When we spoke in chambers on Friday 14 about how this is going to develop, one of the things that the 15 plaintiffs asked the Court to consider was the possibility of 16 providing the panel of potential jurors in this case with a 17 one-page short supplemental juror questionnaire to make the 18 process of picking the jury more expeditious, but also to allow 19 us to maybe get more information without the need for the Court 20 to ask as many questions verbally on issues that may be more 21 private and less comfortable for potential jurors to talk about 22 in open court. 23 For the purpose solely of discussion, not as a final 24 proposal, we sent to the Court this morning our proposal as a 25 discussion piece. It is probably not the best time to bring it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 79BUSEPC 1 up because I don't know that the defendants have had a chance 2 to really digest our proposal, but we do strongly urge the 3 Court to consider a very concise supplemental juror 4 questionnaire, particularly for this case, a case that involves 5 a lot of public awareness about the events of 9/11 and also a 6 case that has invoked a lot of different feelings about 9/11. 7 So the parties have agreed to try to work out ones 8 that may work together, but we know the Court's general view of 9 it and we hope that the Court will allow us to continue to try 10 to work up one document that it may consider because of the 11 unique nature of this case. 12 THE COURT: Well, the one document will be helpful 13 whether I ask the questions in open court or whether it is 14 given to the jury in the form of a written questionnaire, so by 15 all means do it. 16 I happen to think that the dynamics of listening to 17 jurors respond, whether it is at the sidebar or publicly, is a 18 useful exercise for the lawyers. 19 MR. MIGLIORI: This would not be in lieu, by any 20 stretch. This would be to know if there is a question that 21 needs to be asked of a particular juror. We can have some 22 candor in a document because, obviously, we have all had the 23 experience that people who have to speak, even to the 24 preliminary question in front of others, are sometimes less 25 willing to talk about it. So we will work on that, and we will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 79BUSEPC 1 try to get it to you if we can work out a document together. 2 THE COURT: Let me ask you. On the assumption that 3 many jurors will have read one thing or another about 9/11, at 4 what point will the jurors, having read things, become 5 objectionable, if at all? 6 MR. MIGLIORI: I think the Court has appropriately 7 said that, when the Court is comfortable that the answer is 8 sincere to the question, can you be fair and impartial, when 9 the Court can feel that from talking to a person, I think we 10 can reach a resolution. 11 I don't think in this case it will be remotely 12 possible to vet candidates for this jury with that criteria. 13 Everybody will have read something, and whether it is a little 14 or a lot, it will be charged with the politics of 9/11, the 15 attributions of fault from different sectors of the public. 16 I don't know that how much somebody has read or looked 17 into 9/11 can be measured in a useful way, but that is why I 18 think the supplemental juror questionnaire and sort of the 19 issues surrounding what you feel after having read it, how 20 convicted you are to a certain view after you absorb that 21 quantity of information from whatever source, I think that's 22 the real issue. And the only way that we can get through that 23 is a meaningful voir dire. But I don't think that the quantity 24 of reading is a useful measure. 25 THE COURT: Mr. Wayland. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 79BUSEPC 1 MR. WAYLAND: I agree with Mr. Migliori that this is a 2 case in which it would be very hard to find a juror that isn't 3 touched in some way. 4 And I look at it somewhat differently though, not that 5 we don't expect people to have read about this, but the idea 6 that somebody comes into court without knowledge, indeed, 7 substantial knowledge, it is not clear that that person would 8 be a suitable juror for either side. 9 I look at it more as a zone test, your Honor. And 10 that's why I think I agree with Mr. Migliori that we need 11 probably a questionnaire to speed things up. And the way that 12 I have of looking at this is, how close you were, how 13 frightened you were by the events, how do you know about them, 14 not what you read about them so much, but how directly affected 15 your life. 16 And that is not dissimilar to what we do with other 17 cases. We say: Do you know these people? Were you involved 18 in contract disputes? Do you know anything about this company? 19 Do you work for them? 20 New York is very different because every New Yorker 21 can probably say in some way that they were affected, so I 22 think we have to look at the zone. Think of someone who lost 23 someone in the Towers. Someone who knows somebody who lost 24 someone. Someone who had a relative that lost somebody. 25 Someone who was put out of work. Somebody who was otherwise SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 79BUSEPC 1 affected. 2 I think we have to get a handle on how the tragedy 3 specifically affected the jurors. And I think that we can do 4 that fairly promptly if we have a good questionnaire that goes 5 to those issues. The rest of it, how much they know about it 6 and what they saw, I think we need to address, but that's maybe 7 not as critical right away. 8 THE COURT: 3B, statement of the case to the jury. 9 Go back to 3A, when will I obtain this agreed 10 questionnaire? 11 MR. MIGLIORI: Again, we provided the Court this 12 morning with a version of it to start, so if you want to start 13 ingesting where the plaintiffs are going with it -- 14 THE COURT: No. I would rather see it after the 15 defendants have seen it. 16 MR. MIGLIORI: So it is up to them. We did send it to 17 them, just so that you know. 18 MR. WAYLAND: We will respond promptly, your Honor. 19 THE COURT: OK. 20 MR. MIGLIORI: In fact, we can work together and maybe 21 we can submit something that we can agree to. We will do that 22 right away. 23 In terms of the statement of the case, your Honor, in 24 light of the fact that this is a somewhat unique approach to 25 not only reverse bifurcate but reverse bifurcate with different SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 79BUSEPC 1 juries on the issue of damages and liability, there is in this 2 case a real need throughout the trial to remind the jury of 3 what their task will be and what the case is about and why we 4 are doing it this way. 5 I think anybody with even a basic knowledge of jury 6 trials will come into this case as a juror and think, well, why 7 am I deciding the amount, I don't know who is paying it. I 8 don't know why they are paying it. How am I doing this? 9 So the plaintiffs believe that the Court, from prior 10 to voir dire to voir dire to opening, throughout the 11 evidentiary portion of the trial and in the jury charge will 12 constantly have to keep the trial focused on the fact that this 13 is just a valuation of damage. And the language for that and 14 how it is said has very strong implications in terms of what a 15 juror may or may not do once in chambers. 16 So we have provided the Court, again, just for 17 discussion, it is only the plaintiff's version. The 18 defendants, I am sure, will have issues with it and want to do 19 something different, but today we provided the Court as a 20 discussion piece -- we provided to the defendants -- a 21 statement of the case, a basic statement, this is what the case 22 is in simple terms. This is pre-voir dire. This is what you 23 are going to be asked to do, and you are specifically not going 24 to be asked to consider whose fault or who may be paying the 25 verdict. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 79BUSEPC 1 And that is, again, a constant theme for multiple 2 levels, but we thought, since the first time that a juror would 3 probably hear it is before voir dire, we thought that giving 4 the Court an example of a prestatement of the case to the jury, 5 that that would be a good way to feel where the Court may want 6 to go in terms of precise language and what we do at the 7 subsequent levels of instruction. 8 MR. ELLIS: Your Honor, I just think that it would be 9 appropriate if we do it the way we normally do, which is that 10 the defendants will look at the statement -- 11 THE COURT: That is the way that we are handling it. 12 I am not going to see it until you have both passed on it. 13 We have covered voir dire. 14 Preemptories. 15 MR. MIGLIORI: On voir dire, we just wanted to confirm 16 that this will be, as the Court currently thinks, an 17 eight-member panel. 18 THE COURT: Yes. 19 MR. MIGLIORI: And all eight jurors will go back to 20 deliberate? 21 THE COURT: Yes. That is the way that it is provided 22 in Rule 42. 23 MR. MIGLIORI: And the peremptory challenges -- 24 THE COURT: That means that we could lose two jurors 25 and still function. If you both want nine, we can do nine. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 79BUSEPC 1 But eight is sufficient. 2 MR. MIGLIORI: For a three-week trial, your Honor, we 3 are fine with eight. 4 On peremptory challenges, we have talked multiple 5 times about different aspects of this. We understand the 6 Court's current thinking is three per side. 7 THE COURT: Yes. 8 MR. MIGLIORI: I think the preliminary instructions, 9 your Honor, were sort of meshed into the statement of the case 10 aspect. 11 THE COURT: I agree with you that the jury has to be 12 given a firm compass of what they are doing and what this is 13 all about. They need to understand what is going on in a way 14 that is flat, even and neutral. That's the way it is going to 15 come about. That's what is going to happen. 16 How many times I say it, I think you will have to 17 leave to my discretion. 18 MR. MIGLIORI: I think, in working with the statement 19 of the case, we will be able to figure out the Court's view of 20 what that precisely is, and that's really all we needed. 21 How the defendants are described -- 22 THE COURT: We will call them the defendants, I think 23 was the suggestion. We can tell the jury it is not relevant if 24 it is one or many. That is how they are going to be described 25 and the focus of the trial is going to be how much is plaintiff SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 79BUSEPC 1 entitled to recover, if plaintiff is entitled to recover. 2 MR. MIGLIORI: We would ask in that regard, your 3 Honor, that only one lawyer be allowed to cross-examine any one 4 witness. 5 THE COURT: One witness, yes. 6 MR. MIGLIORI: Not for the whole trial, I am saying 7 per witness. 8 MR. WAYLAND: That's fine. That's what we expect, 9 your Honor. 10 THE COURT: One lawyer makes objections. One lawyer 11 asks questions. The same lawyer that asks questions asks 12 redirect. The same lawyer who asked cross asks recross. 13 On summations, I don't think I have said this before, 14 my rule of thumb is plaintiffs go first, defendant goes second. 15 Plaintiff has a short third. And the same lawyer that delivers 16 the rebuttal gives the direct. 17 MR. MIGLIORI: Your Honor, in that there will be 18 different expertise and different lawyers for both sides 19 putting up different witnesses, what is the Court's view of 20 opening? Is it one lawyer per side or can it be divided 21 between two? 22 THE COURT: I propose one lawyer per side, otherwise 23 it tends to get very long. Every lawyer thinks his words are 24 golden. 25 MR. MIGLIORI: Mr. Motley has been very nice to me SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 79BUSEPC 1 lately so I cannot say what I was planning to. 2 MR. MOTLEY: I am the soul of brevity. 3 THE COURT: Pardon me if I have certain reservations. 4 MR. MIGLIORI: On jury charges I am sure, obviously, 5 both sizes have started to work out backwards and forwards how 6 this case will go to the jury in terms of the law. We were 7 looking for some guidance on when the Court wants to start 8 receiving those ideas. 9 THE COURT: I generally like to have the jury charge 10 before the jury trial so that I can work on the charge during 11 the trial. I have my charges, and I will probably rewrite 12 yours. I feel that it is the judge's remarks to the jury. 13 I will give you a charging conference when the 14 evidence is finished. And you will have a draft from me of 15 what I propose to charge, but it is a draft. 16 I am in the habit of not giving out jury charges to 17 the jury for reasons that I will mention in a minute and to 18 deliver the charge close to the text, though the text may 19 change. 20 And I am also given to extemporaneous comment. And I 21 watch the jury as I charge. If I feel that the jury is not 22 getting it, I will repeat it or rephrase it until I sense that 23 they are all getting it. That's been my habit since I became 24 judge. 25 I don't give the written charge to the jury even SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 79BUSEPC 1 though many judges in this court do for a number of reasons. 2 One, is that I found, as a lawyer, that I am not able 3 to trust witnesses reading things. More frequently than I 4 imagine would be the case, they understand the opposite of what 5 I intend to say. So I have come to rely on oral comment in 6 preparing witnesses, when I was a lawyer. And I do the same 7 thing as a judge. 8 I think there is a greater reliability in a group 9 dynamic that is a jury in understanding the judge when the 10 judge conveys his instructions orally. And, therefore, I work 11 as hard as I can to make the charge simple to understand 12 without repetition and, hopefully, clear. 13 The second thing that I have noticed is that when 14 there is a written charge, certain members of the jury are more 15 familiar than others with the written word, and that creates an 16 opportunity for certain members of the jury to dominate others 17 and to be the explicator of the judge's charge. I don't think 18 that is a good practice. I think all jurors are equal and not 19 giving a written charge promotes that. 20 The third reason is that jurors are not shy to ask the 21 judge to repeat a charge or to embellish on the charge. And if 22 the jury is stuck on a charge or doesn't remember a charge well 23 enough, I would rather they come back and ask me to repeat than 24 try to interpret the charge on their own. 25 It also gives the lawyers an opportunity to understand SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 79BUSEPC 1 some of the problems that a jury may have, and that sometimes 2 works out in terms of further things that the judge may want to 3 say and gives the lawyers an opportunity to have input in what 4 the judge has to say. 5 Fourth, sometimes jurors have a great deal of 6 difficulty coming to a unanimous point of view. And a great 7 deal of emotion gets to be heard in the jury room. Any 8 opportunity for the jury to come out and break the tension is a 9 good one, and often the judge's charge gives them the pretext 10 of coming out. 11 I think, therefore, that helps me as well. 12 So in my practice as a judge, I have come to rely on 13 an oral and, to some extent, extemporaneous charge in that 14 fashion. 15 MR. MIGLIORI: Would the Court welcome from us on a 16 rolling basis our thoughts on the charge for your own work-up 17 during trial? 18 THE COURT: No. It is hard to handle. I think what I 19 would like is a draft charge from each side before the trial 20 begins so that I can have it, think about it, work on it as we 21 go along. If there are specific problems I will let you know 22 that by specific comments. 23 MR. MIGLIORI: Thank you. 24 In regards to your comments about reading as opposed 25 to giving it to the jury, it raises another issue. Will the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 79BUSEPC 1 Court allow jurors to take notes at any point during trial? 2 THE COURT: All points, including the openings, the 3 closings and the charge. 4 I instruct the jury that their notes are personal, 5 that they cannot prove a point by showing their notes to 6 somebody else. 7 Whether they take notes or not is completely up to the 8 individual juror. 9 Note-taking is an art. Some are good at it, some are 10 better listeners. 11 We collect the notes at lunch break and at evening 12 break and give the notebook back to the jury the next day. 13 When the trial is over, we collect the notes and destroy them. 14 And I tell the jury at the end of the case that they 15 are going to pledge to be candid in their deliberations to one 16 another and to respect the integrity of one another and their 17 comity in what they do and say and deliberate. So they may 18 take the position after the trial that they do not wish to talk 19 to anybody about what they have done. I encourage that, but I 20 have no power to direct that. 21 During the trial they are not to discuss or deliberate 22 in any way, among themselves or with others. 23 MR. MIGLIORI: The exhibits, your Honor, are the next 24 items on the list, and I don't know if the Court has a 25 particular practice in terms of premarking. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 79BUSEPC 1 THE COURT: I do like premarking. I caution you that 2 premarking should not be an opportunity to endlessly and 3 infinitely proffer exhibits because that is an obfuscation, but 4 a meaningful book of exhibits is extremely useful. 5 Let's go on to discuss handling of exhibits during 6 trial. 7 It is my purpose that each juror should be totally 8 immersed in the trial, and that means that everything that is 9 introduced in evidence should be understood by the jurors, 10 including exhibits. 11 I don't know if you want to use overheads or other 12 common and mass ways of communication or give each juror his or 13 her own book or a blank loose-leaf book which the jury would 14 fill in as documents are passed to the jury, but the jury is 15 entitled to know and understand every piece of paper that comes 16 in. Therefore, if you have a piece of paper coming in that is 17 multiple, large, I will ask you, what is it that you want us to 18 understand from this document. 19 You are entitled to read anything that is in evidence. 20 There is no point in asking a witness to read what is in 21 evidence. You can do it yourself. You don't have to read the 22 entire document. You can read selectively. If you like and it 23 is agreeable to both sides, you can do paraphrases and mini 24 summations along the way. Whatever is useful to give the jury 25 understanding of what is going on is important and I accept. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 79BUSEPC 1 MR. MIGLIORI: Just to clarify one point of that, as I 2 understand it then, there will be opportunity for us to publish 3 documents or even paraphrase it, if possible, without 4 sponsoring witnesses, if a document is admissible? 5 THE COURT: Yes. It is efficient to do it that way. 6 MR. MIGLIORI: We agree, and I think that we would 7 propose, from plaintiffs' perspective, that we like the idea of 8 binders for each juror so that they can collect copies. 9 THE COURT: Now, if I can rule in advance, you can 10 give a whole binder of exhibits to the jury of what is involved 11 and it would be useful in that sense -- let me take that back. 12 I think it makes it hard to manage. But at the end of the day, 13 you should know what you are probably going to do the next day. 14 It would be useful to let the other side know it and then when 15 the jury comes in the morning, the jury's book can be full of 16 exhibits to be used that day, rather than have the whole trial. 17 So before the first day, after openings, distribute a 18 book that will have the exhibits that will probably be used 19 that day, the other side having a chance to look at it and 20 complain to me if anything is wrong and we can proceed in that 21 fashion. 22 MR. WAYLAND: Just to pick up on the exhibit point, 23 your Honor requires the parties to exchange in advance of 24 trial, I assume, a list of documents that they intend to offer. 25 THE COURT: But my experience is that there are many SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 79BUSEPC 1 more documents in that list than anybody intends to use. 2 MR. WAYLAND: We just want to show you the list early 3 enough so that we can deal with any issues before it gets in 4 front of the jury -- 5 THE COURT: You will have an opportunity. 6 We don't have a pretrial order, do we? 7 MR. MIGLIORI: No, we don't. 8 THE COURT: There's no time for it. 9 MR. MIGLIORI: Your Honor, I think the way that we 10 have cooperated and the way that we have worked out issues, I 11 don't foresee it being a problem. 12 THE COURT: Now, the statement of the contentions you 13 don't need, you know well enough. But Mr. Wayland's point, you 14 need an exhibit book. And in the case of anybody that is going 15 to testify by deposition rather than being present, you need 16 the deposition proffered in advance and particular parts of the 17 deposition that will be proffered and the opportunity to note 18 objections in advance. And I think both sides have this 19 problem. You need to work it out. 20 MR. MIGLIORI: We will. It raises another issue just 21 in terms of the Court's preferences. Some judges like to save 22 a little time in the morning, to not waste jury time to deal 23 with something that might come up the night before. 24 THE COURT: I start at 10 o'clock. My day is as 25 follows: We go from 10 to close to 1 with a mid morning break SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 79BUSEPC 1 of about 10 minutes. We try to have jury refreshments there at 2 the beginning of the day. There is an hour and a quarter for 3 lunch. In the afternoon we begin around 2:15 and go to close 4 to 5 with a mid afternoon break. 5 There are no sidebars, if I can help it. If a lawyer 6 asks for one and I don't need it, I am not going to allow it. 7 So we go through the testimony. 8 If there are problems, I want to know about it before. 9 I am available as early as you want to rule on these questions, 10 and we can take recess time to do it as well, but I do not like 11 to stop the trial in the middle. It is an insult to the 12 jurors. 13 MR. MIGLIORI: So we will try to work things out in 14 advance without the Court, and then we will alert the Court. 15 So I assume that we start at 10 jury time, the Court at least 16 some mornings would be willing to meet earlier on a particular 17 issue? 18 THE COURT: Yes, definitely. 19 MR. MIGLIORI: On the technical requirements -- 20 THE COURT: If it is a personal need that you all 21 have, let me know. 22 MR. MIGLIORI: Yes. Thank you. 23 On the technical requirements of the courtroom, I 24 think that the Court has expressed a preference for a large 25 screen. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 79BUSEPC 1 THE COURT: Let me ask you. Do we need this 2 courtroom? This is Judge Griesa's courtroom. I prefer my own, 3 but if it is uncomfortable -- I don't know what press coverage 4 or public interest there will be. We can start here and decide 5 to move to -- 6 MR. MIGLIORI: On this side of the bar, it is plenty 7 comfortable in your courtroom. It really will depend on who 8 shows up. 9 THE COURT: Let's start in my courtroom, and if I 10 need, I will ask Judge Griesa or somebody else. We will move 11 the tables in my courtroom. 12 Do we have room at the tables? Are you going to be 13 there? 14 MS. GOLDMAN: We will not be at the table, we don't 15 believe, unless there are side issues. 16 THE COURT: Would you prefer not to be at the tables? 17 MS. GOLDMAN: I think that's correct. 18 THE COURT: Do you need me to get a table at the side? 19 MS. GOLDMAN: No, your Honor. We are happy to sit in 20 the back. 21 THE COURT: So we will save a half row for you. 22 MR. MIGLIORI: On the technical requirements, I don't 23 know if there is someone that we should coordinate with, but we 24 understand that the Court prefers a large screen in here and we 25 can bring our own technical people in for purposes of trial. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 79BUSEPC 1 THE COURT: Why don't you let us know, both sides, in 2 advance, beforehand so that we can accommodate you and work 3 with your needs. 4 What is your thought? How are you going to do it? 5 MR. MIGLIORI: I know that Mr. Motley and I have 6 different approaches. 7 THE COURT: What is his approach? 8 MR. MIGLIORI: His approach is to scream out for a 9 document that can't be found and put something else up on the 10 Elmo and then start talking about something totally different. 11 MR. MOTLEY: It works well. 12 MR. MIGLIORI: The bumbling approach we call it. 13 THE COURT: That is not going to work. 14 MR. MIGLIORI: Mine may be a little more PowerPoint 15 oriented but I think essentially with an Elmo, a projector and 16 a laptop and a podium, I think we can accommodate a place where 17 we can all sort of have a camp of where a lawyer would be given 18 the structure of the courtroom and then set up. 19 If on a particular issue, for example, if the 20 simulation of the flight data recorder just blurs out too much 21 on a big screen, we are more than willing, at least for 22 purposes of one video, to set up a flat panel for each juror so 23 that they can see it. 24 THE COURT: If you have one screen, you can put it 25 close to the jury box and we can all -- the other side and I -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 79BUSEPC 1 stand on the side and watch. 2 My courtroom will not allow this luxury. I don't have 3 the depth to do it. So the screen is going to have to be 4 closer and it may obstruct some vision. You ought to come and 5 look and try what works. 6 MR. MIGLIORI: I think, your Honor, we just wanted a 7 clarification. We now know the hours of jury time. We 8 understand the trial days will be the 24th, voir dire; 9 hopefully, the 25th, opening and a witness; and then, I think 10 the Court had set -- 11 THE COURT: I am going to recess until Monday. 12 MR. MIGLIORI: The 1st. 13 THE COURT: And go through Wednesday. Thursday and 14 Friday are days of religious obligation. 15 MR. MIGLIORI: So if I can, I have that the following 16 week would be the 1st, the 2nd and the 3rd as full trial days 17 and then not again until October 9. And then it would be the 18 9th the 10th and the 11th and then the following week. 19 THE COURT: The 8th is Columbus Day. That is a 20 Monday. So it is the 9th, 10th, 11th. And I will do my best 21 to have it the 12th. Hopefully we will finish that week. 22 MR. MIGLIORI: And if not, then we go the 15th through 23 the 19th. That week is still open for court time? 24 THE COURT: Right. You have preference over 25 everything. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 79BUSEPC 1 MR. MIGLIORI: Your Honor, for our purposes, unless 2 any of my other plaintiffs' counsel have questions on Driscoll 3 or timing, those are the clarifications that we were looking 4 for today. 5 THE COURT: Mr. Wayland. 6 MR. WAYLAND: That satisfies us. 7 MR. ELLIS: Thank you, your Honor. 8 THE COURT: Anybody else? 9 MR. MIGLIORI: I think on Ambrose, your Honor, 10 everything that we learned today is probably sufficient for 11 now. We are on schedule in terms of discovery. There is a 12 deposition taking place next week on that, and I think any 13 other discovery disputes the parties, if they can't resolve it, 14 will do the two-week process and get that before us sooner 15 rather than later. 16 THE COURT: Are you up to talk, Mr. Barry? 17 MR. BARRY: I was just going to say that I agree with 18 Mr. Migliori. 19 MR. MIGLIORI: Could you say that -- 20 MR. BARRY: We are on schedule. 21 THE COURT: Are there any reports that you want to 22 make about mediation? You don't have to if you don't want to. 23 MR. MIGLIORI: I would only report, your Honor, that 24 we have put substantial time in over multiple days over the 25 past two weeks and in fact that there are meetings set this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 79BUSEPC 1 week for large-scale discussions, full-day discussions and that 2 is factoring into the scheduling of deposition. Mediation is a 3 parallel track that is full steam ahead and the parties, as in 4 everything else, have been as cooperative and cordial but 5 nothing has resolved further to date. 6 THE COURT: I want to make a comment about this also 7 in reaction to some of the things I have read in the press. 8 Any lawyer with experience knows that it is very hard 9 to get vindication out of a trial and that if a difficult case 10 can be resolved by mutual agreement, there's a lot of merit to 11 that mode of resolution. 12 It is not my purpose as a judge to pressure anyone to 13 settle. I get paid just the same if the cases settles or is 14 tried. I come to the court the same time. I may leave at 15 different times. I may have thinner or fatter briefcases to 16 take home, but it is not my concern. 17 What is my concern is to do whatever I can as judge to 18 deliver the best kind and quality of justice that I can. If 19 that can come about through resolution by mutual agreement, it 20 is better for everybody, particularly for the parties. 21 But if a party, for whatever reason, prefers to go to 22 trial, is willing to take all of the risks of a trial, all of 23 the expense of a trial and all of the heartache of trial, that 24 is the prerogative of the party and, as a judge, it would be 25 wrong for me to interfere with it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 79BUSEPC 1 I wanted that sentiment to be clearly expressed and 2 clearly understood. The decision whether or not to settle is a 3 decision to be made by the party with the advice of the party's 4 lawyer and, of course, the agreement of the other side's party 5 and lawyer. It is not my decision. 6 When I approve a settlement, I approve it as fair, the 7 boundary is fair; the decision to settle is not mine, and I 8 have no beef one way or the other on that issue. As I say, I 9 want to make sure that everyone understands that. 10 Next time I see you, I guess will be on special call, 11 which I expect will occur. 12 Thank you all. 13 Have a very good weekend. 14 15 o 0 o 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300