Wednesday, 23 April 2014

Day 229: A roughing up

The continued cross-examination of JTI-Macdonald's expert witness in marketing was perhaps the most aggressive treatment of a witness in several months.

I don't know why the gloves came off when plaintiff lawyers Philippe Trudel and Bruce Johnston stood to challenge Mr. Soberman's view of tobacco marketing. Perhaps, as the last major witness, he was a foot-ball they could land a last few kicks on before the bell rang. Perhaps it was turn-about for the even more bare-knuckled pummeling given to their own marketing expert last year.

Or perhaps it was because Mr. Soberman's style of answering was like a giant "kick me" sign. During the break, my colleague, Pierre Croteau, said this witness was like a bubble machine - spouting out frothy replies that disguised any real meaning. His body language, with a grimacing smile, big hand gestures and lots of bobbing and weaving, didn't help. (Too much time at the front of a lecture hall? Too much time in France?)

For whatever reason, it was tough going. Tough enough that for the first time since Jacques Lacoursière's testimony at the beginning of the defence case a year ago, a witness asked for time out. The morning break was held ten minutes earlier than normal!

Who was directing the directive summary?

Mr. Trudel used the "directive summary" of 976 documents as the organizing principle for his last several rounds of questions in the morning.

Mr. Soberman had surprised everyone by revealing on his first day of testimony that lawyers from the U.K. firm, Freshfields, had prepared a summary of marketing documents from JTI's Canadian operations. This summary had not been provided to the plaintiffs with the usual disclosure of "reliance" material, but was hastily given to them in the following days.

The 700 page document (Exhibit 1742) was a rich mine for the plaintiffs. It allowed them to contrast what was written in the summaries with what Mr. Soberman had included in his report. It allowed them trace the influence of the lawyers on his supposedly independent report. It allowed them to put their fingers on obvious exclusions and likely redactions.

Mr. Soberman's story was that the lawyers had provided him with research assistance no different than he would have received from non-advocates, and that he had complete confidence in the work that had been done.

He stuck with that story -- and also with his explanation of having supplemented his review with documents he located for himself from public sources. But over the now four days of his appearance, the story seems to have changed. At first I thought it was just my bad note-taking, but by the end of the day I am pretty confident that there were several contradictions about the series of these events. "The record will show" as they say in this business!

The missing documents 

The directed summary talks of 996 documents, but only 620 or so are presented. So what happened to the other 370?

Doug Mitchell (lawyer for JTI-Macdonald) gave his explanation before the question could be put to Mr. Soberman. Documents had been extracted because they were duplicates or because they were irrelevant, as they referred to pipe tobacco, or roll your own tobacco. The fact that there were lots of references to roll-your-own in the remaining list just meant that "they didn't do a very good job," he said. (This seems to me to be remarkably prescient, given that this summary was prepared some three years before Justice Riordan ruled that roll-your-own and pipe tobacco were not relevant to the trial).

The documents reviewed had been screened for their relevance to the arguments Mr. Soberman wanted to present: that the company had not targetted young people, or tried to discourage smokers from quitting, or that it had behaved in ways that companies do when operating in a "mature market".

The disconnect

Mr. Trudel pointed out several ways in which these documents did not support these conclusions. There were very few documents that had been identified as confirming his theories about the mature market - and there were documents where it looked like the company's marketers had a different view. (Exhibit 1742.304 and 1742.103).

Mr. Trudel found other defects in the process. Several relevant marketing documents were missing from the list - documents which, for example, showed JTI-Macdonald trying to recruit starter smokers or discourage quitting.

Mr. Soberman could have (and possibly did) see these documents as part of his review of the trial transcripts and records related to Mr. Pollay's testimony. (Several times Mr. Soberman was unable to say clearly whether he had read a document or not -- they all seemed rather alike after having read so many, he noted. On this point, I truly sympathized)

Mr. Trudel drew a few important admissions. Mr. Soberman had not considered addiction when applying his mature market model to his analysis, or to his understanding of how people moved from experimenting with cigarette to regular use.  He agreed that the lowering of prices that resulted from smuggling would increase the number of smokers.

But for the most part, the witness stood fast. Starter smokers were those who were already smokers. Opinions about safer cigarettes were unaffected by advertisements, as government messaging had already established in smokers' minds that lower tar was safer. The decision to smoke was one that was made with a high level of emotional involvement, and after considerable effort. Advertising could create social acceptability for cigarette brands, but not for the behaviour of smoking.

Not a universal opinion

Mr. Trudel showed examples where marketers from the other companies (Imperial Tobacco, Exhibit 153 and Rothmans, Benson and Hedges, Exhibit 762) had taken the view that advertising generated social acceptability and recruited youth. "So these marketing planners were out of touch with what good marketers would do?" Mr. Soberman demurred, saying that he could not answer fully without reading the whole document. (They were hefty documents -- he knew they were too long to read in the time permitted!).

Later, he was shown a chapter from the 2012 Surgeon General's report which articulated the tobacco industry's position on tobacco marketing. Line by line, Mr. Soberman was asked whether these views were also his. Line by line, he agreed.

Switching up

Despite maintining pressure on Mr. Soberman, it seemed this morning that Mr. Trudel was unable to get the answers he wanted from this witness. Perhaps this is why Bruce Johnston upped the pressure when he took over in the afternoon - feet splayed, arms crossed, rapid-fire delivery. He didn't hesitate to chastize the witness for evasive or non-answers.

Physically, Mr. Soberman responded to the change n tone. He stopped wandering around, and often stood with his arms behind his back as he replied. His answers were shorter, if not always direct.

Mr. Johnston challenged Mr. Soberman's judgement, drilling into his willingness to accept the work of JTI's lawyers as competent and unbiased assistants, and to not even gain direct access to the company records. "The research was done in a fair way," said Mr. Soberman. "And you are asking the court to make the same assessment," Mr. Johnston pointed out.

Exhibit 1272
In the form of documents that had been omitted from the work prepared by the lawyers, Mr. Johnston provided reasons why Mr. Soberman's trust might have been misplaced. Missing from the series of marketing plans on his list were documents for 1979. But the plans for that year were already on teh trial record -- including several statements that contradicted the witness' view that the company had no ambitions for starters. (Exhibit 1272)

Mr. Soberman had to fend off questions that suggested his research methods were sloppy -- that he had not tried to interview current or former employees. That he had not, in effect, done as good a job as a marketer at RBH, who had conducted a review of the marketing strategies of each of the Canadian companies. (Exhibit 762).

Ms. Ellis had interviewed former RJR-Macdonald staff, reviewed transcripts and documents from the constitutional case. She reported "RJR generated many studies and advertising campaigns focusing on starters i. e. 12-16 years old. Their objective was to optimize product and user imagery of Export "A" against young starter smokers through an offensive strategy aimed at young, male, starter smokers."

As the afternoon wore on, Mr. Soberman's view of JTI-Macdonald's actions looked increasingly naive. But his enthusiasm at delivering that message did not dim. Tomorrow will be the last morning of this second-to-last defence witness.

Better late than never?

A funny thing happened midway through the afternoon, after Doug Mitchell rose in an attempt to shield his witness from a question. After more than 200 days at trial, Justice Riordan finally read the riot act to the company lawyers -- ordering them, through a lecture to Doug Mitchell, to stop signalling answers with their objections. "There has been a lot of that in this trial – too much, and I want to clamp down."

With only a handful of days of witness testimony remaining, his timing is most peculiar!

Tomorrow is the last day of Mr. Soberman's cross examination. A number of procedural issues will also be discussed. Included in tomorrow's blog will be a report on some procedural discussions today.