Monday, September 24, 2007

Expect The Unexpected

One of the things that keeps you on your toes when covering an extended proceeding such as the News-Press/NLRB hearing is that even when you think that you know what to expect, the unexpected happens.

I arrived at the courtroom at 9 am this morning fully expecting to hear editorial page editor Travis Armstrong continue the testimony he began before the hearing adjourned for a one week recess. Instead News-Press attorney Barry Cappello was at the podium unexpectedly arguing for permission to call a witness out of order, one Ralph Haber, a human factors consultant.

"Human factors" is the study of how human beings interact with their environment. While one might reasonably expect to encounter such an expert testifying in a personal injury case finding one attempting to testify at a hearing on whether an employer has committed unfair labor practices is, well, quite unexpected.

Cappello and company wanted Haber to testify that the only sign that would have been visible to passing motorists at the freeway overpass demonstration back in February would have been the one that said "Cancel Your Newspaper" and that other signs, including one that read "Protect Free Speech" had lettering that was too small to have been legible.

Perhaps, not wholly unexpectedly, he met the same fate as the previous expert the News-Press tried to call as a witness regarding the overpass incident and was not permitted to testify to an opinion.

Judge Kocol was seemingly persuaded that whether or not signs could be seen was of no moment. "How is that relevant? Suppose they weren't effective in getting their message out, so what?" the judge testily asked of Matt Clarke, one of the paper's attorneys. "The assumption that motorists constitute the entire universe of people who could read these signs is a mistaken assumption." Implicit in that observation is the fact that the motorists only are a small part of the potential audience and the greater exposure to the message of the demonstration lies in subsequent news reports, accounts and video of the demonstration.

Although it probably made no difference in the long run NLRB attorney Steve Wyllie seemed to catch Haber off guard when he challenged his assertion that he had never failed to qualify as an expert witness in any case in which he had been called to testify. "Weren't you disqualified in a case called Eagles v. Albertsons?" asked Wyllie. There was a long pause during which Haber appeared to stumble around a bit. "Did that case involve a forklift?" Haber replied. Indeed it did, and it was downhill from there.

The justification for calling Haber out of order was that he had to be at another trial tomorrow in Sacramento and is traveling by car. The good news for Haber is that he will have plenty of time to make it. The bad news for the News-Press is that they couldn't use Haber to make any part of their case.

Time to head back and see what surprises await me.

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