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Will DVD of Exxon Valdez spill sway justices?

Publication Date: 
February 11, 2008
Source: 
National Law Journal
Author: 
Marcia Coyle

Marcia Coyle interviewed Associate Professor Jeffrey Fisher about the Exxon Valdez case he's arguing before Supreme United States on February 27, and how the inclusion of evidence on DVD could impact the outcome:

WASHINGTON — Last year, a video of a high-speed police car chase strongly influenced the U.S. Supreme Court to rule in favor of police in a deadly force liability case. Could a DVD have similar sway in a case involving one of the worst oil spill disasters in the nation's history?

On Feb. 27, the high court will hear arguments in Exxon Shipping Co. v. Baker, No. 07-219, a challenge to a $2.5 billion punitive damages award stemming from the Exxon Valdez oil spill in Prince William Sound, Alaska, in March 1989.

In the Exxon case, the DVD contains audio — for example, a drunken Captain Joseph Hazelwood's distress call to the Coast Guard — and visual evidence — the impact of the oil spill on the environment — that was part of the court record. Exxon made no objection to the filing.

...

"Twenty years ago we would have put transcripts in the joint appendix, but now with this technology, it's just as easy to put it on a DVD and send it up [to the court], sort of a DVD appendix," said Jeffrey Fisher of Stanford Law School.

Fisher, along with counsel at Seattle's Davis Wright Tremaine, represents the punitive damages class in the Exxon case and will argue the case.

Fisher said the lawyers decided to submit the DVD for two reasons. First, the question of the excessiveness of the punitive award, he explained, involves facts surrounding Exxon's conduct.

"Exxon's own rendition of the spill and its conduct in its brief is more sanitary than even its own executives admitted in evening talk shows and congressional hearings," said Fisher.

...

The second reason for the DVD, he said, was the "real challenge and concern" on his side of litigating an event that happened 19 years ago.

"The thing about audio and visual is it has a way of bringing the event back in a way the written word doesn't always do, especially in a punitive damages case, where on the most basic level, a jury has decided to punish a defendant for socially outrageous conduct," said Fisher.