Preparing tortious interference claims.

Though trade warfare may be waged to the bitter end, there are certain rules of combat which must be observed. ...(1)

All is not fair in the business world where competitors guard zealously against raids on their customers and their valued employees.

"Tortious interference" is an umbrella term that encompasses intentional acts intended to disrupt various relationships. Early cases of tortious interference involved the use of violence, fraud, or defamation to disrupt business relationships - each act tortious in its own right. In Lumley v. Gye, a court recognized for the first time that inducements independency tortious were actionable.(2) There, the defendant convinced a singer to break her contract at a rival's theater and perform at his theater instead.

Today, most jurisdictions recognize claims for intentional interference with contracts, terminable-at-will contracts, business relations, and prospective business relations. Shared elements and defenses developed for tortious interference claims, but their nuances create different litigation challenges.

Clients with tortious interference problems may include the following:

* the manufacturer whose former vice president opened his own business and launched an ad campaign announcing that the manufacturer uses defective component parts - knowledge gained while the vice president was employed by the manufacturer;

* shop owners who intend to force the closing of an adult bookstore in the mall in which their shops are located despite a lease between the mall and the bookstore owner;

* an unemployed administrative aide who cannot get hired because her former employer gives prospective employers negative feedback about her, and who is under a psychiatrist's care for the resulting stress;

* a physician whose abortion practice has resulted in picketing of the entire office building so that other professionals cannot shield their own clients from the chaos, causing loss of business;

* a Fortune 500 executive whose long-negotiated purchase of another company was detailed by that company's CEO, who personally despises the executive;

* a lawyer who seeks fees on a case that he solicited improperly and that was resolved by other counsel.

Competition lies at the heart of most of these actions. Although some interference is motivated by spite, other conduct is driven by deeply felt religious or political philosophies. Uniformly, these clients exclaim, "It's not fair!" They feel victimized, either directly or indirectly.

Exploring the Basics

Given the variety of circumstances in which tortious interference can occur, ascertain from the prospective client if the general parameters of a claim can be satisfied.

All intentional interference claims require (1) interference with a relationship, (2) proof the defendant knew of the relationship, (3) intentional action, (4) "improper" or "unjustified" conduct, and (5) damages proximately caused by the interference.

Determine early "who" acted improperty. Parties to a relationship cannot tortiously interfere, although they may be in breach of contract or commit other intentional acts, such as fraud. Intentional interference requires third-party conduct that disrupts a relationship.

Be aware that vicarious liability theories generally apply so that principals are liable for the tortious acts of their agents acting in the course and scope of employment. Principals that participated actively in the interference may be liable even though their employees are exonerated. Also, note that an agent's actions outside the course and scope of employment but on the principal's property give rise to employer liability.

Start to pin down when the conduct occurred. Generally, tort claims do not accrue until the last element - damages - is satisfied. With tortious interference claims, however, clients may demand legal action when the conduct begins, even though it has not yet caused lost business. How many customers must one lose before taking action? At what point should a plaintiff realize the loss of customers is not random but results from intentional interference?

Learn whether (1) people withdrawing from the business relationship have connections with one another that can be traced back to an interfering act that prompted their action or (2) a triggering event, such as an advertisement or public announcement, preceded the loss of business.

Tortious interference claims are governed by tort statutes of limitations that vary, among jurisdictions. Suits often couple interference counts with breach of contract; fraud; or statutory violations, including civil conspiracy, restraint of trade, civil theft, and violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act. Consider the interplay among the various limitations statutes, which may range from 2 to 12 or more years.

Determine where the conduct took place. Complex business relationships often involve parties in several states or countries. Explore choice of law and diversity jurisdiction issues before filing suit. Warn the prospective client that intentional interference suits present a minefield of procedural issues.

Whether or not you decide to take the case will depend partially on the complexity of some of these threshold issues and the resources you can dedicate to their analysis.

After considering these preliminary matters, determine which cause should be pleaded and assess which defenses are likely to be asserted.

Interference with Contract

The existence of a contract means it will be slightly easier to prevail. Interference with contracts is more likely to be treated as improper than interference with relationships not vet solidified in contractual form.(3) Presumably this springs from the assumption that if the parties have formalized their relationship, their commitment to one another is strong and intended to last. To help jurors grasp the essence of the contractual relationship, analogize it to marriage.

Intentional interference with a contract requires (1) a contract, (2) the defendant's knowledge of the contract, (3) the defendant's intentional procurement of the contract's breach without justification or privilege, and (4) damages.(4)

The initial obstacle is surviving scrutiny of the contract itself. If the contract is void from its inception, there is no remedy for its interference.(5) Thus, "murder for hire," drug deals, plots to steal trade secrets, and agreements regarding usurious loans can be interfered with freely. It makes sense, of course, that parties with unclean hands cannot complain to a court of law about interference with their dirty dealings.

In contrast, intentional interference with voidable contracts is generally actionable.(6) For example, a teenager contracts to make tie-dyed T-shirts for a vendor. If someone wrongfully induces the buyer to breach the contract with the juvenile, the fact that the contract was voidable due to minority will not constitute a defense to the tortious interference suit.

Similarly, contracts that are technically voidable because of formal defects, lack of mutuality, unconscionability, or other failings may nonetheless give rise to actionable interference.(7) Be aware, however, that some jurisdictions consider contracts violating the statute of frauds void from their inception.

Also note that Louisiana does not recognize an action for intentional interference with contractual relations, and Massachusetts sometimes restricts remedies within attorney-client contracts.(8)

Non-contractual Business

Relationships

Courts recognize that these relationships are also vulnerable to interference. The elements of tortious interference with a business relationship track those of tortious interference with a contract, with court battles centering on the existence of a cognizable relationship.(9)

If the relationship is ongoing, with the parties sharing a legitimate expectancy that it will continue, there is greater likelihood that interference will be considered improper. Ask whether:

(1) the parties' understanding as to the nature, extent, and purpose of their dealings would have been completed but for the defendant's interference;

(2) the parties have an ongoing relationship in which work is performed regularly; and

(3) the plaintiff has legal rights, such as the right to sue for promissory estoppel, under the relationship.

A "yes" to any of these inquiries means that there is a greater legitimate expectancy that the relationship is a recognizable entity.

In contrast, if the answers are "no," the relationship cannot support an interference action. For example, there is no cognizable relationship with the community at large. The mere wish that a random customer win appear or return is not a protected business relationship, no matter how fervent the hope, how positive the customer's past experiences with the business, or how much the competitor spends getting the customer's business.(10)

Interference

Whether the interference is with a contract, a contract that is terminable at will, or a prospective cognizable business relationship, the next hurdle is establishing actionable interference.

Interference must be direct. For example, a hospital terminates a surgeon's staff privileges because his negligence has caused litigation against the hospital. As a result, the surgeon loses patients. The hospital has interfered only incidentally with the advantageous business relationships. If, however, the surgeon's privileges are stripped because the hospital has hired its own specialist and hopes to keep the surgeon's referrals for itself, the interference is directly and intentionally with the surgeon's advantageous business relationships. The mode of interference is removing staff privileges and is actionable.

Interference must be intentional. Courts do not recognize negligent interference because the defendant usually has no knowledge of the relationship.(11) Your client is, in effect, an unforeseeable plaintiff The defendant's acts negatively affect the business relationship in only an incidental and, thus, nonactionable sense.

Interference must be successful. If one vendor barricades the entrance to another's business, but customers climb over the barrier, so that no one actually abandons the existing relationship, there is no basis for an intentional interference suit.

Interference may take many forms. Interference can be accomplished by inducing party to act or not to act (offering bribes, making promises); using physical force (standing in the competitor's doorway with a gun); depriving a party of the means of performance (hiding a bicycle so that it cannot be delivered to the buyer); or misleading one of the parties to the relationship (telling the other prospective buyer that the sale is being held three days later at a different location from where it actually takes place).

Interference must be improper and unjustified. One of the fuzziest aspects of tortious interference actions is whether justification is part of the prima facie case, an affirmative defense, or both. Pattern jury instructions may shed fight in jurisdictions where they are available. Unless it is absolutely dear that the jurisdiction treats justification solely as an affirmative defense, plead lack of justification in the complaint.

There is no bright-line test for determining whether interference is improper. A number of factors come into play:

* nature of the defendant's conduct;

* defendant's motive;

* interests with which the defendant

interferes;

* interests that the defendant seeks to

advance;

* relative proximity or remoteness of

the defendant's conduct to the interference; and

* relationships between the parties.(12)

A balancing test that is frequently used incorporates many of these factors: weigh the social and private importance of the objective advanced by the interference against the significance of the interest interfered with, considering circumstances such as the methods and means used and the relation of the parties.(13)

Asserting a bona fide claim may justify interference in fight of all the circumstances.(14) For example, two people have contracted for purchase of the same airplane, and the seller is about to deliver to Buyer A. Buyer B threatens the seller with suit, and the seller relinquishes the airplane to Buyer B.

Buyer A, who has lost the benefit of his bargain, has recourse only against the seller. Intentional interference will not he because even though Buyer B acted intentionally, his conduct was not improper in fight of his motive, his interests, and the balance of the equities.

When the defendant admits interfering with an at-will or prospective business relationship but claims he or she did so in legitimate competition, focus on the means. For example, peaceful picketing in front of a competitor's business may not be actionable, while stopping customers entering the store may be.

However, interference does not need to be for the purpose of gaining a business advantage; conduct motivated solely by spite is often actionable.(15) Most jurisdictions, however, do not require evidence of spite. Rather, legal malice must be shown. This is inferred from intentional acts undertaken without justification or from willful violation of known Contractual rights.(16)

Interference may be privileged. Some conduct, no matter how egregious, is not actionable because it is privileged. Be concerned with the litigation privilege. This generally affords immunity for any act occurring in the course of a judicial proceeding, including interference with the attorney-client relationship.

For example, moving to disqualify opposing counsel on a certification that you will call him as a witness and then not doing so will not give rise to a tortious interference suit although this conduct may be questioned under professional guidelines.(17)

The privilege may also extend to conduct and statements made at settlement negotiations.(18) Further, it covers statements in court documents about a lawyer's competence and conduct because without the privilege one could not pursue a legal malpractice action without fear of being sued.

Government officials also enjoy privileges against tortious interference claims. Their conduct is absolutely immune if undertaken within the scope of official duties.(19)

Careful investigation of the actor's official duties will sometimes uncover a crack in the immunity wall. For example, a city commissioner who is not in charge of hiring and firing city employees may not be immune for comments made that interfere with their employment. Conduct that has no official purpose may also be subject to attack. Check statutes, state constitutions, and city or county charters for descriptions of roles and responsibilities that can be marshaled to combat the privilege defense.

People with a "duty to speak" may also be immune for what would otherwise be actionable tortious interference. For example, a manufacturer made a golf shoe with an angled wedge on the outside of the soles to help golfers distribute their weight during swings. The United States Golf Association (USGA) notified the manufacturer and other golf organizations that the product violated the rules of golf. Because the USGA had a duty to act, its conduct was qualifiedly privileged. Consequently, the plaintiff had to establish that the defendant acted with actual malice.(20)

Duty-to-speak cases often involve employers who give negative but arguably truthful job references. At least one court has held that former employers have an interest in the subject matter sufficient to give rise to a qualified or conditional privilege.(21)

Moreover, constitutional protections may apply in these cases. Both the United States and applicable state constitutions may contain clauses supporting a right to interfere.

The right to petition government is frequently invoked when environmental protection groups interfere with the activities of corporations and manufacturers. This privilege, however, is not absolute. A question of fact exists as to whether the mode, manner, or purpose of the challenged communications amounts to either an abuse or forfeiture of the privilege.(22)

You may also encounter the free speech privilege. For example, dissatisfied homeowners may peacefully picket the builder's office or sale center but may not claim a First Amendment privilege for physically blocking the path of prospective buyers who then abandon their attempt to enter the premises. Some intentionally interfering words may also be defamatory, giving rise to a qualified privilege and requiring research into First Amendment jurisprudence.

Remedies

These include both compensatory and punitive damages. Compensatory damages generally include past and future lost profits, injury to reputation, and lost wages, as well as other consequential damages. To find evidence supporting these damages, look to

* testimony of people no longer using the plaintiff's services or product as a result of the interference;

* complaints, calls, and correspondence from clients that can be traced to the interference;

* canceled sales; and

* psychiatric or medical reports (the plaintiff may recover for emotional distress if it was reasonably expected to result from the interference).(23)

Although standards for punitive damages awards vary among states, the existence of spite or reckless indifference by the defendant generally suffices.(24)

Remember that interference often warrants temporary or permanent injunctive relief Be aware that an injunction may successfully end interference that has not yet accrued for the purposes of suit. This will, on rare occasions, resolve the matter for the client without having to engage in protracted litigation. A preliminary injunction provides some breathing room and an opportunity for all of the parties involved in the litigation to reach agreement.

Human Themes

Going forward with a tortious interference suit will be intellectually and practically challenging. The gauntlet posed by the defenses and privileges is well worth running if you want to be involved in cutting-edge litigation that involves some of the most familiar human themes - greed, betrayal, survival, malice, and, occasionally, altruism.

Notes

(1) WILLIAM L. PROSSER, LAW OF TORTS 956 (4th ed. 1971). (2) 118 Eng. Rep. 749 (1853). (3) RESTATEMENT (SECOND) OF TORTS [sections]766 cmt. b (1979) [hereafter RESTATEMENT]. (4) See generally id., at [sections]766; Williams v. Shell Oil Co., 18 F.3d 396 (7th Cir. 1994); Summit Mach. Tool Mfg. Corp. v. Victor CNC Sys., Inc., 7 F.3d 1434 (9th Cir. 1993); Maness v. Star-Kist Foods, Inc., 7 F.3d 704 (8th Cir. 1993), reh'g en banc denied, 1993 U.S. App. LEXIS 30920 (8th Cir. Nov. 26, 1993), and cert. denied, 114 S. Ct. 2678 (1994); In re Burznyski, 989 F.2d 733 (5th Cir. 1993); Waldrep Bros. Beauty Supply, Inc. v. Wynn Beauty Supply Co., 992 F.2d 59 (4th Cir.), amended, remanded, slip op. (4th Cir. July 12, 1993); A.V. Consultants, Inc. v. Barnes, 978 F.2d 996 (7th Cir.), reh'g denied, 1992 U.S. App. LEXIS 32292 (7th Cir. Dec. 9,1992); Brown Mackie College v. Graham) 81 F.2d 1149 (10th Cir. 1992); McKinney-Green, Inc. v. Davis, 606 So. 2d 393, 397 (Fla. Dist. Ct. App. 1992). (5) RESTATEMENT, supra note 3, at [subsections]766, 774. (6) PROSSER, supra note 1, at 932; RESTATEMENT, supra note 3, at [sections]766 cmt. f. (7) See, e.g., Fineman v. Armstrong World Indus., Inc., 980 F.2d 171 (3d Cir.), reh'g denied, 1992 U.S. App. LEXIS 31328 (3d Cir. Nov. 24, 1992), and cert. denied, 113 S. Ct. 1285 (1993); Shamblin v. Berge, 212 Cal. Rptr. 313 (Ct. App. 1985); Cook v. MFA Livestock Ass'n, 700 S.W.2d 526 (Mo. Ct. App. 1985); Langer v. Monarch Life Ins. Co., 966 F.2d 786 (3d Cir.), reh'g en banc denied, 1992 U.S App. LEXIS 15722 (3d Cir. July 9,1992); American Private Line Serv., Inc. v. Eastern Microwave, Inc., 980 F.2d 33, 35-36 (1st Cir. 1992); Ladesic v. Servomation Corp., 488 N.E.2d 1355 (Ill. App. Ct. 1986), among conflicting authorities noted in Johnson v. George J. Ball, Inc., 617 N.E.2d 1355 (Ill. App. Ct. 1993). (8) Lagarde v. Allstate Ins. Co., 515 So. 2d 1147 (La. Ct. App. 1987), cert. denied, 516 So. 2d 368 (La. 1988); Walsh v. O'Neill, 215 N.E.2d 914 (Mass. 1966). (9) RESTATEMENT, supra note 3, at [sections]766B; see Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812 (Fla. 1994); Los Angeles Land Co. v. Brunswick, 6 F.3d 1422 (9th Cir. 1993), cert. denied, 114 S. Ct. 1307 (1994); Massey v. Tandy Corp., 987 F.2d 1307 (8th Cir. 1993), reh'g denied, 1993 U.S. App. LEXIS 8185 (8th Cir. Apr. 15, 1993); Lightening Lube, Inc. v. WITCO Corp., 4 F.3d 1153 (3d Cir. 1993), subsequent appeal, 39 F.3d 1170 (3d Cir. 1994); Chouteau v. Enid Memorial Hosp., 992 F.2d 1106 (11th Cir. 1993); United States Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986 (11th Cir. 1993), cert. denied, 114 S. Ct. 2710 (1994); Delloma v. Consolidated Coal Co., 996 F.2d 168 (7th Cir. 1993); Rad Advertising, Inc. v. United Footwear Org., Inc., 546 N.Y.S.2d 597 (App. Div. 1989); American Private Line Serv., Inc., 980 F.2d 33; Association Research & Dev. Corp. v. CNA Fin. Corp., 333 N.W.2d 206 (Mich. Ct. App. 1983), appeal denied, 419 Mich. 881 (1984). (10) Ethan Allen, 647 So. 2d 812. RESTATEMENT, supra note 3, at [sections]766(C) cmt. a. (12) Id. at [sections]767. (13) See, eg., Cherberg v. Peoples Nat'l Bank of Wash., 564 P.2d 1137 (Wash. 1977); Rock Falls v. Chicago Title & Trust Co., 300 N.E.2d 331 (Ill. App. Ct. 1973); Grillo v. Board of Realtors of Plainfield Area, 219 A.2d 635 (N.J. Super. Ct. 1966). (14) RESTATEMENT, supra note 3, at [sections]773. (15) Tamiami Trail Tours, Inc, v. Cotton, 463 So. 2d 1126 (Fla. 1985). (16) RESTATEMENT, supra note 3, at [sections]766, cmt. r; see, eg., Delloma, 996 F.2d 168; Brounstein v. American Cat Fanciers Ass'n, 839 F. Supp. 1100 (D.N.J. 1993); Rad Advertising, Inc., 546 N.Y.S.2d 597; Hayes v. Irwin, 541 F. Supp. 397 (N.D. Ga. 1982), aff'd, 729 F.2d 1466 (11th Cir. 1984). Cf. Calbom v. Knudtzon, 396 P.2d 148 (Wash. 1964). (17) Levin, Midlebrooks, Mabie, Thomas, Mayes & Mitchell v. United States Fire Ins. Co., 639 So. 2d 606 (Fla.), subsequent appeal, 35 F.3d 576 (11th Cir. 1994). (18) AroChem Int'l, Inc. v. Buirkle, 968 F.2d 266 (2d Cir. 1992), related proceeding Buirkle v. Hanover Ins. Co., 832 F. Supp. 469 (D. Mass. 1993); contra Petyan v. Ellis, 510 A.2d 1337, 1338-39 (Conn. 1986); Rainier's Dairies v. Raritan Valley Farms, Inc., 117 A.2d 889 (N.J. 1955). (19) Barr v. Matteo, 360 U.S. 564, reh'g denied, 361 U.S. 855 (1959); McNayr v. Kelly, 184 So. 2d 428 (Fla.), conformed to 185 So. 2d 194 (Fla. Dist. Ct. App. 1966). (20) Weight-Rite Golf Corp. v. United States Golf Ass'n, 766 F. Supp. 1104 (M.D. Fla. 1991), aff'd, 953 F.2d 651 (11th Cir. 1992). (21) Delloma, 996 F.2d 168. (22) Florida Fern Growers Ass'n, Inc. v. Concerned Citizens of Putnam County 616 So. 2d 562, 569-70 (Fla. Dist. Ct. App. 1993). (23) RESTATEMENT, supra note 3, at [sections] 774(A). (24) See Greenwood & Co. Real Estate v. C-D Inv. Co., 18 Cal. Rptr. 2d 144 (Ct. App.), review granted, 19 Cal. Rptr. 2d 520, and dismissed, 32 Cal. Rptr. 2d 543 (Ct. App. 1993); Embassy/Main Auto Leasing Co., C.A.R-Leasing, Inc., 508 N.E.2d 331 (Ill. App. Ct.), appeal denied, 515 N.E.2d 106 111. 1987); Fineman, 980 F.2d 171 (3d Cir. 1992), cert. denied, 113 S. Ct. 1285 (1993).

Conducting Effective Discovery and Trial of Business Fraud Cases

Nearly all fraud, theft, and conversion cases involve deceit in financial transactions. Who stole what? From whom? Why? How? In what amounts?

To answer these questions, plaintiffs must understand the nature of each transaction involved; the financial effects of the transactions on the tortfeasor and the victim; the tortfeasor's financial record-keeping system; and the tortfeasor's organizational structure, corporate policies, corporate governance, and management.

Discovery in business fraud cases typically involves three district rounds: document requests, depositions of fact witnesses, and depositions of experts.

Interrogatories. I recommend comprehensive document requests and Fed. R. Civ. P. 30(b)(6)-type depositions of representatives of the defendants. Questioning should relate to corporate structure, internal policies, departmental authority, management fines, record-keeping practices and policies, computer databases, and identities of key personnel. I have found interrogatories to be nearly useless early in the litigation, because defendants' lawyers have too much control over the answers.

Documents produced should be objectively summarized in a user-friendly computer database program. This will prove invaluable in preparing for depositions, opposing motions for summary judgment, preparing trial exhibit lists, and gaining a good understanding of the relationships among parties and within corporate departments.

Fact witness depositions. This phase of discovery should focus on deposing witnesses who understand the challenged business transactions and who participated in them day to day. These witnesses run the gamut from clerical workers to middle managers. The purpose here is to fully understand the nature of the defendants' operations before deposing senior management and corporate officials.

The next step is to depose financial staff members. These people can provide evidence of record keeping that reveals the fraudulent nature of the transactions. This enables plaintiffs to prove that financial reports reflecting the fraud were routinely passed along to senior management. Financial personnel can also establish the motive for the fraudulent conduct and the magnitude of the financial harm. These depositions win help produce the evidence necessary for compensatory and punitive damages.

Depositions of senior management ordinarily follow the depositions of lower-level personnel, but each case must be evaluated independently, relative to its unique facts and pressure points. The goal is for the depositions of senior manager's to establish a top-to-bottom management structure that places ultimate responsibility for fraudulent practices on the top officials. Proving the culpability of senior management enhances the prospect for punitive damages.

Expert depositions. Generally, depositions of liability and damages experts follow fact discovery as a matter of court practice rather than for strategic considerations. Practically, however, the experts need the evidence produced in fact discovery to reach their opinions and conclusions.

Plaintiffs' lawyers should consider not taking depositions of defense experts. Most states and the federal courts now require written experts' reports before the dose of expert discovery, and these reports will be available to plaintiffs.

Waiving expert depositions has two significant benefits. First, plaintiff will not have to pay fees to defense experts for their depositions. Second, plaintiff can save their truly effective challenges for cross-examination at trial while preventing defendants from restructuring experts' testimony to meet these challenges.

Trial Presentation

A single theme presented concisely is the key to success in these cases. Quoting volumes of boring and complicated financial evidence will alienate the jury. Plaintiffs' lawyers must distill the evidence to its essence and present it against a backdrop of greed, avarice, and profit taking.

Attorneys should characterize the alleged fraud in a phrase that will be repeated throughout the trial. Is the case one of stolen property, or self-dealing, or deception, or concealment?

The theme should also include a phrase to characterize the financial evidence. Frauds are usually either misrepresentations or thefts. Misrepresentations may involve an overstatement of value or concealment of unfavorable conditions. When the case involves a taking of money or property, it should be labeled a theft.

The theme should be considered and used during all key phases of trial: voir dire, opening statement, plaintiffs' testimony, experts' testimony, closing, and - if possible - jury instructions. Thorough preparation is necessary to incorporate the theme into each phase of trial.

Generally, I believe that the way to win a business case is to create the shortest possible case-in-chief Following are a few common techniques that can effectively shorten a trial.

* Work sincerely and early with defense counsel toward a stipulation for admissibility of all trial exhibits. This may mean agreeing to admit some defense exhibits that might not technically meet all standards. However, it is imperative that plaintiffs avoid the fatally dull process of authenticating and providing factual bases for the admission of documents at trial. jurors need to focus on the material evidence, not the minutia.

* Prepare summaries of evidence in chart form to illustrate material evidence for the case-in-chief. Courts will allow summary exhibits where the presentation is based on admitted documentary or testimonial evidence, and charts are ideal for illustrating time fines, the components of fraudulent transactions, and damages.

Frequent reference to the charts by lay and expert witnesses will reduce the time each witness must testify. Charts can tell the plaintiffs' story clearly and effectively. The charts become storyboards to guide jurors during deliberations.

* Offer only essential witnesses - those crucial to proving each element of the causes of action and those with the most knowledge who can speak most comfortably to the jury. Do not offer repetitious testimony, even if a second good witness can support a "best" witness. Use cumulative evidence only for the most hotly disputed factual issues in the case.

Limit the number of expert witnesses. Experts are often essential for establishing proof of liability and damages, but the fewer the better. Nothing is more devastating than a defense cross-examination that reveals inconsistent positions among the experts.

Call experts who can summarize the plaintiffs' entire case during direct examination. A damages expert is ideal for this purpose, because he or she must assume certain facts offered by plaintiffs that will be repeated in formulating the basis for the damages. This is a nice way to summarize the case from the witness stand before closing arguments.

* Limit the defendants' case-in-chief The defense themes will emerge during discovery. Often they have little to do with the merits of the case. It is important that plaintiffs' defense efforts to prolong the trial or dilute the impact of plaintiffs' evidence with marginal issues.

One common defense theme is that developments after the fraud have changed the value of the transaction to benefit the plaintiff. Every effort should be made to restrict or exclude evidence of post-fraud changes in market conditions to diminish recovery. Valuation of compensatory damages is made as of the date of the fraudulent transaction. Consequential damages are another form of damages that occur following that date.

Pre-trial motions in limine will alert the trial judge to anticipated evidentiary and legal problems with the defense case-in-chief or with anticipated defense themes during the cross-examination of plaintiffs' witnesses. Focusing the court's attention on these problems early removes some of the steam from the defendants' case and will help shorten the trial.

Business fraud comes in many varieties. Each case has unique aspects that can be used to tell jurors a compelling story. Plaintiffs' counsel must grasp all available evidence, condense it, and simplify it to develop a forceful theme that can be emphasized during all phases of trial.

Ira H. Leesfield in the senior partner at Leesfield, Leighton, Rubio & Hillencamp, with offices in Miami and Key West, Florida. Sally Gross-Farina is an associate with the firm.