Day on Torts

The American Bar Association has released four additions to its "Civil Trial Standards."  The new standards addresss these topics:  Use of Tutorials to Assist the Court, Summary Exhibits and Witnesses, Organizing the Complex Case for Trial, and Judicial Involvement with Settlement.

Some of the earlier standards (Juror Notebooks, Juror Questioning of Witnesses, etc.) have found their way into our rules of civil procedure.

From the ABA:  "The Standards fill an important gap. They recommend procedures and otherwise furnish guidance that is not available elsewhere and are designed to foster and ensure a fair trial in both state and federal court. Critics of the jury trial have questioned the ability of jurors to decide complex cases fairly. The procedures recommended in the Civil Trial Practice Standards are particularly useful in complex cases and provide jurors the tools they need to come to fair decisions in all cases."

Here is a report containing all of the standards.

The risks  of pushing through the envelope at trial are discussed in this opinion from the Ohio Supreme Court:

"In addition to the excessive damages given under the influence of passion or prejudice, the trial court detailed the misconduct of McLeod’s counsel. Civ.R. 59(A)(2). The court described counsel’s conduct as “discourteous” and “theatrical,” including “constant interruption of opposing counsel without bothering to object and obtain a ruling” so that he could “convey to the jury his own idea of what the witness should be saying, thus testifying for the witness, rather then [sic] making a genuine and valid objection to the question.” These interruptions, for example, included statements such as “This is all made up,” and “where did he come up with that, Judge?” and were asserted with no accompanying objection. This type of conduct became so prevalent that the trial
judge admonished counsel during a conference outside the presence of the jury."

...

"The trial court also found that counsel exceeded the bounds of zealous advocacy by accusing the witnesses for the defense of “prevarication” and making this a theme for his entire case despite having no evidence of a cover-up. The extent of this theme is evidenced by counsel’s closing argument, in which he referred repeatedly to a spoliation-of-evidence claim that the trial court had
previously dismissed via directed verdict. Counsel’s closing argument ignored this ruling and referred to the alleged cover-up several times. Without any evidence supporting the claim that any of the appellants intentionally acted to destroy evidence of negligence, counsel’s statements bore no relevance to the case and appealed only to the jury’s passion or prejudice."

Result? A $30 million dollar verdict was reversed and the case remanded for new trial.  Read the opinion in Harris v. Mt. Sinai Medical Center, NO. 2007-OHIO-5587  (Oct. 25, 2007) here.

I have no problem with this result.  We all know the rules, and there must be a price for not following them.  Sure, the appropriate board of responsibility can take action, but an adversary party should not pay the price for inappropriate conduct in the courtroom.

The key, of course, is that the rules must be applied equally.  I have seen outrageous conduct by opposing counsel in courtrooms that has not been appropriately punished.  Judges must apply these rules across the board.  To be sure, anyone can make a mistake, but repeated violations of court orders must result is prompt action by the judge.

You have the smoking gun email.  Now, what do you do with it?

The law of discovery, good old fashioned hard work and a little luck can lead to fantastic evidence.  But great evidence in your briefcase doesn't win cases at trial - you have to know how to get that evidence before the factfinder.

This article from www.law.com addresses how to get emails into evidence.

Enjoy.

The highest court of New York has ruled that a "high-low" agreement must be disclosed to the judge and to non-settling defendants.

This is what the Court said:

To ensure that all parties to a litigation are treated fairly, we hold that whenever a plaintiff and a defendant enter into a high-low agreement in a multi-defendant action which requires the agreeing defendant to remain a party to the litigation, the parties must disclose the existence of that agreement and its terms to the court and the non-agreeing defendant(s). This result strikes a proper balance between this State's public policy of encouraging the expeditious settlement of claims, and the need to ensure that all parties to a litigation are apprised of the true posture of the litigation so they may tailor their strategy accordingly. Disclosure provides a non-agreeing defendant a meaningful opportunity to place on the record how it intends to use the agreement at trial, if at all, and affords the trial court an opportunity to weigh the interests of all the parties in considering the extent to which an agreement may be utilized in that forum. Of course, the determinations as to what effect, if any, the existence of the agreement will have at trial, including whether such an agreement should be disclosed to the jury, are matters that lie within the sound discretion of the trial court.

The case is Reynolds v. Amchem, Inc., No. 89 (N.Y. Ct. of App. June 27, 2007).  Read the opinion here.

The penalty for violating the rules of cross-examination and closing:  reversal.

Here is how the Court described the violation: "the cross-examination of [defense expert] Dr. Ramirez went beyond permissible grounds on the issue of bias and amounted to a prohibited attack on Dr. Ramirez’s character when plaintiff’s counsel repeatedly argued that Dr. Ramirez had intentionally destroyed documents that had never been created and of which he was under no duty to compile or produce. ... Plaintiff’s counsel’s arguments to the jury that defense counsel was “pulling a fast one,” “hiding something,” and “trying to pull something,” was tantamount to calling defense counsel liars and accusing them of perpetrating a fraud upon the court and jury."

Learn the rules.  And follow them.    Indeed, work hard to follow them in the heat of the moment and  when your opponent is violating them. There is no reason to believe or even suspect that Plaintiff's counsel here intentionally violated the rules of trial, but the fact remains that his client lost a verdict in her favor.   And that does neither client nor lawyer any good.

The decision is  Sanchez v. Nerys, No. 3D05-2434 (FL. COA 3rd Dis. 2/14/07).  Read it here.

Thanks to Matt at Abstract Appeal for informing me about this opinion.

Plaintiffs in Indiana had a $39 Million verdict reversed because of the failure to disclose the name of a witness.

Plaintiffs were injured in a car wreck with a  driver who was operating his vehicle under the influence of alcohol.  They sued the restaurant where the driver had been drinking alleging inter alia  that it served a visibly intoxicated patron (the driver)

Plaintiffs knew that a waitress from the restaurant thought the driver was visibly intoxicated but did not disclose her in answers to interrogatories.  The specific interrogatory at issue was as follows:

"State specifically each and every fact upon which you rely to support your allegation under I.C. § 7.1-5-10-15.5 that these Defendants, and each of them, provided alcoholic beverages to William J. Whitaker with actual knowledge that he was visibly intoxicated, and the names and addresses of those persons possessing knowledge of such facts."

The restaurant obviously knew the waitress and deposed her but she denied knowing that the driver was intoxicated.  Plaintiffs knew that when defendants called her at trial she would change her testimony on the stand and would say that she lied earlier in her deposition.  Plaintiffs did not supplement the interrogatory and disclose the name of the waitress.

The Indiana Supreme Court reversed the jury's verdict, saying:

"[W]e conclude that the plaintiffs' failure to identify [the waitress] as a person with knowledge of the relevant facts was a negligent if not intentional breach of its discovery obligations," the court said. "Subsequently, plaintiffs failed to supplement their response with the substance of her change in testimony. As these events unfolded, these omissions cascaded into a closing argument that materially misled the jury. The cumulative effect was misconduct prejudicing [the restaurant's] defense. …

"[T]he … persuasive point is that counsel for [the restaurant], based on [the waitress'] … deposition testimony, told the jury in opening statement that no witness establishing [the man's] visible intoxication would be produced and that [the waitress] would testify that he was not intoxicated. [The plaintiff's attorney] in closing pounded on the claimed 'embarrassing' conduct by [the restaurant's] counsel. [The waitress's] undisclosed change of story thus simultaneously destroyed not only [the defendant's] theory of the case but also its credibility with the jury. [The defendant] therefore credibly contends that its handling of the case would have been substantially different, and the damages, if not the liability, would have been materially different if plaintiff's counsel had discharged their obligations."

The case is  Outback Steakhouse v. Markley, No. 18S04-0602-CV-66. (Ind. S. Ct. Nov. 8, 2006.)  Read it here.

Recall that under Tennessee law the failure to supplement discovery results in a presumed sanction that the evidence will be excluded at trial, although lesser sanctions are available to the trial judge.  Rule 34A, T.R.C.P.

I remember years ago trying a case against a well-known lawyer in Nashville (who is still practicing, by the way.) I moved in limine to prevent certain testimony from being introduced into evidence; my motion was granted.

Later that day I saw the witness in the hallway who would have been in the position to offer the excluded testimony. I asked the witness if he had been informed about the ruling. He said that he had been told by my opponent that he (the lawyer) could not ask him (the witness) a question about the matter that was excluded but he (the witness) could volunteer it.

Here is a case from Florida that explains is simple terms the obligation of a lawyer who knows that a witness has testimony that has been ruled inadmissible.

"Second, the prosecutor did not bother to explain the pre-trial ruling to the witness before calling him. Instead, the prosecutor explained that he trusted law enforcement witnesses to confine their answers to the questions asked so that he could avoid the improper testimony by simply avoiding any question that would directly call for an answer including the barred evidence. Obviously, this approach did not work. The prosecutor is cautioned that professionalism demands that he review matters barred from evidence by court order with any affected witness before calling that witness to the stand."

As if any lawyer with any knowledge of the law or any sense of professionalism needs to be told this ....

The case is Florida v. Santiago, CASE NO. 5D05-2162 (Florida D.C. App., 5th Dis., May 5, 2006). See the opinion here.

Thanks to Matt at Abstract Appeal for the heads-up on the decision.

How do you get computerized records into evidence? A recent case, In re: Vinhnee, 2005 WL 3609376 (B.A.P. 9th Cir. Dec. 16, 2005), has an extended discussion of the issue.

This case conflicts with the law in our federal circuit, United States v. Salgado, 250 F.3d 438, 453 (6th Cir. 2001), which has a more permissive approach to laying the requisite foundation.

The case is the subject of a discussion in this article published at www.law.com website. The article cites several different cases on the subject.

The article also refers to the book written by Edward J. Imwinkelried, "Evidentiary Foundations. Section §4.03[2] of that text suggests the following 11-step foundation for authenticating computer records:

*The business uses a computer.
*The computer is reliable.
*The business has developed a procedure for inserting data into the computer.
*The procedure has built-in safeguards to ensure accuracy and identify errors.
*The business keeps the computer in a good state of repair.
*The witness had the computer read out certain data.
*The witness used the proper procedures to obtain the readout.
*The computer was in working order at the time the witness obtained the readout.
*The witness recognizes the exhibit as the readout.
*The witness explains how he or she recognizes the readout.
*If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.

I recommend you file this article away for future use.

The Rhode Island Supreme Court has ruled that a plaintiff who is injured in a slip and fall accident at a restaurant is entitled to a spoliation instruction if the restaurant, contrary to policy, did not prepare an accident report.

The Court re-affirmed existing law in the state which provided that "it was appropriate for a trial justice to give a spoliation instruction where a corporate defendant (1) failed to produce a document which the evidence tended to show was routinely generated by the corporation and (2) was unable to provide a satisfactory explanation as to why the document was not prepared with respect to the incident in the case before the court.""

The dissenting justice said as follows: "In this case, no evidence whatsoever was introduced to explain how the liquid came to be on the floor, how long it had been there before Mrs. Mead fell, or whether the defendants had any actual or constructive notice of its presence. It is difficult to discern a factual predicate for the defendants' liability other than by drawing an adverse inference from their failure to produce an accident report. A necessary precursor to the jury's ability to draw such an adverse inference, however, was a determination that an accident report at one time existed. Lacking that factual predicate, the majority's endorsement today of the trial justice's instruction, in effect, commandeers the doctrine of spoliation to enforce, with severe consequences, a corporate policy of creating accident reports."

The case is Mead v. Papa Razzi, No. 2004-317. Read the opinion here.

Yesterday I posted changes to the Federal Rules of Evidence.

Below, in the language of US Courts, are the changes to the Federal Rules of Civil Procedure. Absent action by Congress, the changes are effective December 1, 2006.

Civil Rule 9 (Pleading Special Matters) (conforming amendment pertaining to Supplemental Rule G)

Supplemental Rule A (Scope of Rules), Supplemental Rule C (In Rem Actions; Special Provisions), Supplemental Rule E (Actions in rem and Quasi in Rem: General Provisions), and Rule 26 (General Provisions Governing Discovery; Duty of Disclosure) (conforming amendments pertaining to proposed Supplemental Rule G)

Read the text of the new rules here.

The United States Supreme Court has approved changes to several rules of the Federal Rules of Evidence. The changes become effective December 1, 2006 unless Congress votes to overturn them.

Here is the language of the rule changes from the US Courts website:

Evidence Rule 404 (Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes) (clarifies that evidence of a person's character is never admissible to prove conduct in a civil case)

Evidence Rule 609 (Impeachment by Evidence of Conviction of Crime) (permits automatic impeachment only when an element of the crime requires proof of deceit or if the underlying act of deceit readily can be determined from information such as the charging instrument)

You can read the exact changes here.

Thanks to Trial Ad Notes.

Here is another case out of our appellate courts that reminds us of the need to make a record.

Plaintiff failed to object to the introduction of certain medical records in a personal injury case. The defendant read excerpts of those records to the jury to establish the existance of a pre-existing condition. Citing Grandstaff v. Hawks, the Eastern Section of our Court of Appeals said "[o]bjections to the introduction of evidence must be timely and specific. ... A party who invites or waives error, or who fails to take reasonable steps to cure an error, is not entitled to relief on appeal. Failure to object [to] evidence in a timely and specific fashion precludes taking issue on appeal with the admission of the evidence."

The Court found that Plaintiff did offer an objection to the method of introduction of the pre-incident prescription records of the plaintiff, i.e. a paralegal read from a summary of records from five different pharmacies. However, on this issue the Court used the familiar "abuse of discretion" rule to uphold the decision of the trial judge.

The bottom line: trial judges are granted significant leeway in admitting or rejecting evidence at trial, but the lack of a timely, specific objection gives them 100% discretion. You don't need to rant and rave about objectionable evidence, but you do need to make a record.

The case is McPeek v. Lockhart, No. E2004-01034-COA-R3-CV (Tenn. Ct. App. E.S. 4/28/06. Read the opinion here.

Lawyers who cheat need to be popped - hard. Here is an article about a defense lawyer who commented during opening statement on evidence that had been excluded by the trial judge. The appellate court reversed an order of sanctions against him.

I was in a trial a little over a year ago where the defense lawyer repeatedly violated an order on a motion in limine. The lawyer knew that we did not want a mistrial and the judge refused to come down hard when the order was violated. I knew that asking for sanctions would be an exercise in futility.

I do not know all of the facts of the PA case so it is difficult to know whether the appellate decision is right or wrong, but from what appears in the article it seems to me that, at the very least, the defense lawyer knew or should have known that he was pushing the envelope. In my opinion it is the responsibility of the lawyer to know what the judge has ruled in limine, and if he or she does not understand the ruling to ask for a clarification. It is not appropriate to gamble on what the order means and ask for forgiveness later.

Then again, my clients gain no advantage when I put error into the record.

Yesterday I wrote about Carpenter v. Klepper and its discussion about the locality rule. The last third of that opinion is worth reading, too - it addresses the level of specificity required when seeking discretionary costs under Tennessee Rule of Civil Procedure 54.04(2). Read it for some insight on how these issues should be addressed via post-trial motion.

I wrote last week that the Tennessee Supreme Court approved certain changes to the Tennessee Rules of Civil Procedure (and other rules of procedure).

What I did not address is the proposed rule change that was not adopted by the Court. That is the proposed change to Rule 8.01, which I argued against in this post. Under this proposal plaintiffs would have been required to state the amount that was sought as damages in the original complaint.

I am glad that the Court did not adopt this proposal. Too many lawyers use the ad damnum as a marketing tool, knowing that a press that does not understand litigation will look only to the amount sued for to determine whether a lawsuit is noteworthy.

More importantly, however, it is very difficult to determine the value of many cases early in litigation. Experienced lawyers know that the value of cases increases and decreases frequently during the discovery phase. Requiring a lawyer to state an ad damnum early will almost certainly result in an inflated ad damnum, which will then be used against the plaintiff later in the case. (If the original ad damnum is too low that will also have to be explained.)

Also, lawyers seem to forget that if they get sued for malpractice arising the ad damnum used in the original complaint will be Exhibit A at the trial of the negligence action. Obviously, that does not mean that you should understate damages out of fear of a professional negligence case. Instead, I believe that if you state an ad damnum it should be one that reflects the upper limits of the range of reasonableness for your case.

Do you need an ad damnum at all? That is the subject of a future post.

Here is an article written by a trial consultant for defendants about how to minimize damages in significant cases.

Very interesting.

Thanks to David Swanner for telling us about it. I would recommend you check David's blog every day; I do.

An appellate court in California reversed a jury verdict because of a trial court's refusal to instruct the jury pursuant to the federal standard of care requiring "extreme care" as opposed to the reasonable care standard. The appellate court held that this was prejudicial error requiring a remand for a new trial.

California law has a negligence per se just as we have in Tennessee. It allows violations of federal regulations to give constitute negligence per se.

Read this:

"Comparing the basic speed law instruction utilized by the court with the federal regulation proposed by appellants, each requires the operator of a vehicle to consider inclement weather and additional hazards which may result from operation of a vehicle under such conditions. Each suggests that the operator must increase his or her diligence in how the vehicle is operated. But the standard of diligence in each is different. The basic speed law requires only that a driver shall not drive at a speed "greater than is reasonable or prudent having due regard for weather . . . ." (Veh. Code, § 22350, italics added.) The federal standard requires the driver of a commercial vehicle to use "extreme caution" and to reduce speed when hazardous conditions exist. (49 C.F.R. § 392.14.)"

Here is the precise language from Section 392.14 in context: "Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist."

Thus, the Court ruled, the trial judge was required to instruct the jury on the higher standard set forth by federal law and the failure to do so was negligence.

This is an important case. Lawyers would be advised to ask the Court to instruct the jury on the federal regulation and the fact that the violation of the regulation is negligence per se.

Read the opinion in Weaver v. Chavez here.

The Tennessee Supreme Court has just reversed a summary judgment because there was not an appropriate record to permit the Court to determine if summary judgment was appropriate. The trial court granted summary judgment in favor of the appellee without indicating its reasoning for doing so. The appellee's motion for summary judgment did not state the grounds for summary judgment with particularity and no memoranda in support were contained in the record on appeal.

Here is the decision.

The Court put a burden on the appellant and the appellee to ensure that the record is in order. The Court put particular emphasis on the fact that the appellee was trying to uphold a summary judgment.

I mentioned in a previous post that the Civil Rules Commission has proposed several rules changes that, if adopted by the Tennessee Supreme Court and the Legislature, will become effective on July 1, 2006.

One proposal is a change to Rule 37 and provides that a party who without substantial justification fails to supplement or amend discovery responses pursuant to Rule 26.05 will not be able to use that evidence at trial. The proposed rule gives rise to the risk of imposition of other sanctions as well, including advising the jury of the failure to amend or supplement. Your can read the proposed rule here.

As you know, some lawyers just cheat. Some are just ignorant of the law and make mistakes. But others know the law and cheat.

Lawyers who are ignorant about the law need to be educated and warned. But cheaters need to be hammered. Judges who see lawyers repeatedly violate the rules - especially the same rule - need to come down on them.

An appellate court in Florida has made this point loud and clear. Read this excerpt:

"We affirm. We write only to comment that, although not rising to the level of fundamental error, the prosecutor's closing argument in this case exceeded the bounds of proper argument. Again, we reiterate the admonition of Judge Blue in his specially concurring opinion in Luce v. State, 642 So. 2d 4 (Fla. 2d DCA 1994): 'Trial attorneys must avoid improper argument if the system is to work properly. If attorneys do not recognize improper argument, they should not be in a courtroom. If trial attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar.'

If the prosecutor intends to continue to appear in criminal court, we suggest that he view continuing education videotapes on the subject of closing argument to review arguments that should not be made before a jury. If he persists in disregarding the rules of proper argument, he should expect appropriate sanctions."

I don't know whether the lawyer who is the subject of these comments is ignorant of the law or is a cheater. Either way, the message is loud and clear.

Thanks to Matt at Abstract Appeal for bringing the case to my attention.

The Civil Rules Commission in Tennessee has proposed to change Rule 8 of the Tennessee Rules of Civil Procedure and require a plaintiff to state an ad damnum.

Under current law, a plaintiff probably must state an ad damnum at some point, except in medical negligence cases. Why do I say a plaintiff probably must do so? The law is unclear. Nothing in the rules requires an ad damnum but Rule 15 prohibits a plaintiff from moving to amend the complaint post-verdict to increase the amount sued for. The concern is that if no specific amount is listed the amount of the verdict may be capped by whatever amount is in the complaint and if the only amount listed is, say, the jurisdictional amount some court somewhere might apply that as a cap. Once again, there are no cases on point (except in the medical negligence area).

I am opposed to the proposed rule change and, in fact, I do not think a plaintiff should be able state the amount sued for in the complaint. No good can come of it. I intend to write in opposition to the proposed rule. If you want to do so, write to the Supreme Court Clerk.

A defendant in a product liability case cannot introduce proof of the absence of other claims unless strict guidelines are met, according to the Third Circuit Court of Appeals.

The plaintiff's lawyer "argued that there was no foundation for such testimony because [defendant's] engineer had admitted in his deposition that [it] kept no records relating to either safety complaints by [its] customers or past accidents involving [the product involved in the incident]."

Judge Smith said "Most courts admitting evidence of the absence of prior accidents in product liability cases have done so only where the testifying witness, usually an employee of the product manufacturer, has testified that (a) a significant number of substantially identical products have been used in similar circumstances over a period of time; (b) the witness would likely be aware of prior accidents involving these products; and (c) to the witness's knowledge, no such prior accidents have occurred." Judgment in favor of the defendant was reversed.

The opinion is Forrest v. Beloit Corp.. Click here to read a news report of the opinion. Read the opinion itself here.

Tennessee and a minority of other states require that all 12 jurors agree on the verdict? This article comments on the practice.

I disagree with the requirement of unanimity. It imposes an unfair burden on the plaintiff, particularly in these times of massive anti-plaintiff sentiment fueled by aggressive campaigns of the insurance, health care, and manufacturing industries.

The Legislature approved the rule changes proposed by the Tennessee Supreme Court. The changes were effective on July 1, 2005.

Here is a copy of the revisions. All were adopted except proposed Rule 1A; it was withdrawn by the Court. The changes to the rules of evidence are found beginning on page 32 of the Order.

Any lawyer can benefit by reading a good closing argument in any case. Of course, it is better to see it live - the paper cannot capture the emotion of an argument. But if you don't have time to sit around in courtrooms all day a transcript is the way to go.

Here is the transcript of the argument of Thomas Mesereau, the attorney for the King of Pop.

Thanks to New Orleans lawyer A.J. Levy for letting me know how to find it. I met A.J. 12 or 15 years ago at an ATLA meeting; he was and is ahead of the technology curve. His blog is Out of the Box Lawyering.

Ok - this article is not about the trial of a personal injury or wrongful death case. But it is about trial. And it is about the benefits of the use of technology at trial.

We have used Powerpoint in trial for over five years. We first used digital video clips to impeach over three years ago. It is time-consuming to prepare. It is expensive.

It is also very effective.

Preparing for trial is, by nature, hectic. If you are not wired enough to power the Titans' Coliseum on a night game, you are not paying enough attention. It's helpful to have a checklist to see if all of the applicable basics are covered.
This trial preparation is set out in phases - sixty days before trial, thirty days out, at the pre-trial conference, and in the final days before trial. The courtroom is a much friendlier place when you thoroughly prepare yourself.
Download file.