Some of you are a little young to remember Irving Younger, the great trial advocacy teacher. Professor Younger developed the "10 Commandments of Cross Examination" that were taught in trial advocacy programs across the country for many, many years.
Experienced trial lawyers would take issue with some of Younger's commandments, arguing that from time to time they should be ignored. I agree, but that does not mean that they do not have value.
Winning Trial Advocacy Tips is one of the best blogs for trial lawyers in the entire blogosphere. Elliott Wilcox repeatedly delivers useful, timely information of interest to those of us who try cases. I encourage you to add it to your regular reading list.
Today, I share with you his post of tips to keep your witnesses happy and gain their cooperation. He is, as usual, dead-on. Ignore his advice at your peril.
An excerpt:
1. Tell your witness EXACTLY where to go. I normally try cases in our downtown courthouse, and I’ve been to all of the outlying courthouses for miscellaneous hearings. But I’d never been to this courthouse before. The courthouse was located at the jail complex, and I didn’t know which building I was supposed to go to. I had to poke my way around a little bit before I was able to find the right building. Once I finally found the right building, I had no idea which floor I was supposed to go to, and I had no idea which of the two courtrooms I was needed in. Even when I found the right courtroom (which was behind bulletproof glass) I wasn’t sure if I was supposed to wait outside with everyone else or if I was expected to ask a guard to let me inside.
Even if you think your witness knows their way around the courthouse, don’t assume that they know where to go. Tell them not only where to go, but where they should park. If there is more than one building, tell them which one they’ll go to. Tell them how to navigate through the metal detectors. Once they’re inside the building, which floor do they need to find? Which room? Should they stay outside the courtroom, or should they walk inside? Remove all doubt from their heads — tell them exactly where to go.
The Federal Evidence Review has shared a PDF of the current federal rules of evidence. Only 40 pages in length (20 pages if you print on the front and the back of the page) this PDF is a handy addition to your trial notebook for cases in federal court.
The Blog of Legal Times advises that the Committee on Court Administration and Case Management of the United States Judicial Conference has developed pattern jury instructions "to address the increasing incidence of juror use of such devices as cellular telephones or computers to conduct research on the Internet or communicate with others about cases,” as explained by Judge Julie Robinson, committee chair, in a memo to district judges. “Such use has resulted in mistrials, exclusion of jurors, and imposition of fines.”
“The committee believes that more explicit mention in jury instructions of the various methods and modes of electronic communication and research would help jurors better understand and adhere to the scope of the prohibition against the use of these devices,” explained Robinson.
Here are the instructions:
Before Trial:
You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the Internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom.
Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. I know that many of you use cell phones, Blackberries, the Internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any Internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.
At the Close of the Case:
During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the Internet, any Internet service, or any text or instant messaging service; or any Internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.
I think that these instructions are very well-written and should be used by all state and federal trial judges. It is natural for jurors to let their curiosity get the best of them and search out information on their own. They should be advised that such efforts are not consistent with their obligations as jurors.
Here is an interesting article which explains why jurors turn to the Internet for information.
How many tort cases are tried in Tennessee in the last year? The Annual Report of the Tennessee Judiciary gives us the answer.
Here is the data for the year ended June 30, 2009:
Total jury trials in all tort cases: 260
Total number of medical malpractice trials: 26
Total jury trials in the larger counties:
Shelby: 48
Davidson: 65
Knox: 40
Hamilton: 23
Anderson: 8
Rutherford: 8
Sumner: 7
Washington: 6
Sullivan: 6
Hamblen: 6
Coffee: 5
Putnam: 4
Wilson: 4
The discussion of the "vanishing trial" is a reality.
Trial Lawyer Tips has a great post about steps to take to before picking a jury in another city, county, or state.
An excerpt:
To get familiar with my out of town trial venues, I used to order the local paper several months before trial and read it each day or week. By the time trial rolled around, I knew more about the local news than most of the jurors.
I started using this technique a little over 20 years ago and firmly believe that there is a distinct advantage of going into a "new" venue with some knowledge of community happenings. The Internet has made it easier to get this sort of information.
The Civil Litigation Blog has shared a list of themes that can be used in personal injury trials. While there is nothing particularly original on the list, I do not recall ever seeing such a list of potential themes in one place.
Once again we turn to Paul Luvera for guidance on some aspect of trial practice. Paul is an extraordinary lawyer who is kind enough to share his knowledge with us on a regular basis via his Plaintiff Trial Lawyer Tips blog.
This time, Paul shares his method of organizing for trial in non-complex cases.
An excerpt:
The first thing I did was to collect all the materials and physically stack them in piles by year. I then organized the piles chronologically. I put the material in one large notebook arranged in chronological order using numerical dividers. There is an index with tab number and identification of the document. By looking at the index I can trace the first event through the last one and have the tab number for any document that corresponds to that date. A set of the hearing rules are also in this notebook under a divider. This notebook becomes my "resource notebook."
Paul goes on to describe how he takes that information and moves it into trial notebooks.
I use a system similar to Paul, except I tend to have a timeline developed before depositions in the case. (Paul's case was an administrative hearing, and therefore it is possible that there were no depositions taken in the matter.) Creation of a solid timeline early in the case, with additions to it as more information is known, helps me keep a solid grasp on the case at a glance.
I encourage you to read the remainder of Paul's post and see if you can pick up any other tips to help you in your practice.
I am an optimist. Nevertheless, I attempt to have a "Plan B" in the event things go wrong.
For example, consider a case that Rebecca Blair and I tried a few years ago. We needed a computer in the courtroom. But because both of us have been around long enough to know that things can go wrong, we brought a back-up computer with the same information loaded on it that we had loaded on Computer 1.
Computer 1 died. No problem. Plug in Computer 2. It worked for a day or so. Then it died. A third computer was brought from the office with relatively little downtime (we had the info we needed on a CD) and it survived until the end of trial.
I use this example to demonstrate that even with appropriate planning stuff happens. If you don't plan at all, I can guarantee you that stuff will happen.
Here is an excellent blog post on this subject from a wonderful blog, Winning Trial Advocacy Tips. Titled "What's Your Emergency Plan for Jury Trials, " the post does a very nice job describing why we need to plan for the unexpected and gives several fine examples of what can go wrong at trial.
Here is an excerpt from the post:
I agree with everything but the last sentence. Even perfect preparation cannot turn every bad case into a winner. But solid preparation can make it much more likely to win the cases you should win and perhaps even win a few you would have otherwise lost.Being a trial lawyer is kind of like being a top notch surgeon performing an appendectomy. Removing the appendix is easy. Heck, I could probably teach you how to do it in a 30 minute seminar. But surgeons don’t get paid the big bucks because they know how to remove the appendix — they get paid the big bucks because they know how to respond to the thousand different complications that can arise while you’re removing it.
That’s why you get paid the big bucks. Trying cases is pretty easy. A high school student could probably do it if everything went according to plan. But things never go according to plan, and that’s why you get paid the big bucks. Script out your responses to all of the different scenarios before trial begins, and you’ll be the lawyer representing the prevailing party, rather than the lawyer apologizing to your client.
Once again, Winning Trial Advocacy Tips has an excellent article for those of us who try cases.
Here is an excerpt:
There’s something strange about how our brains work. For some reason, our brains don’t seem to comprehend the word “Don’t” very well. In fact, our brains have the power to completely ignore that single word while still hearing every other word in the statement. It happens on a subconscious level. When we hear the word “Don’t,” we ignore that word and follow the rest of the command. If you’ve ever coached sports, you probably noticed the difference between telling an athlete, “Don’t miss this shot” vs. “You’re going to make this shot.” When you tell players, “Don’t miss this shot,” they’re more likely to miss. For some reason, “Don’t” gets lost in the shuffle, leaving only the command: “MISS THIS SHOT!”
Philip Brown, author of MS Litigation Review and Commentary, has an interesting post on the impact of social networking on the work of trial lawyers.
An excerpt:
I have talked with lawyers who are worried about a juror going home and researching parties on social network sites. What if a juror does that and discovers that the juror has a mutual friend with the party or belongs to the same club or religious group? Could that impact the juror’s decision in the case?
The same goes for lawyers researching potential jurors before a jury is put in the box. Social network sites can provide a wealth of information on how a person views life.
Within a couple of years I expect these issues to be so prevalent that social network sites are addressed by the Court and parties in voir dire. It would not surprise me if Courts instructed jurors to restrict their use of these sites during trial to make sure that the juror did not discover a personal connection to a party not known during voir dire.
Winning Trial Advocacy Tips continues to be a great source of information for those of us who try cases. This post, called "The Proper Use of Notes," does a fine job explaining how - and how not - to use notes at trial.
An excerpt:
When preparing the notes that you’ll bring to court, instead of writing out a word-for-word script, write down only what you need. Rather than full sentences, use brief phrases or single words. Besides, when you’re in the heat of trial, your eyes won’t easily focus on full sentences like “Mrs. Johnson, would you please tell us how you know the defendant?” All you’ll really need is a quick reminder, like “RELATIONSHIP?” or “KNOWS DEFENDANT?” to prompt the correct question.
Winning Trial Advocacy Tips has a great post on the subject of whether you should ever call a witness a liar.
An excerpt:
Because we’re lawyers, we don’t have any problems believing that someone will take the stand and lie to us. But jurors don’t think like that. Maybe they’re more optimistic than we are, or maybe they don’t get lied to as often as we do, but most jurors I’ve met prefer to think that any witness who takes the stand is going to be honest with them. (Yes, they even expect 10x convicted felons to tell the truth.) If you attack a witness’s testimony by calling him a liar, you’re going to need toprove that he lied. If you can’t prove that he lied, you face an uphill battle trying to get the jury to disbelieve his testimony.
I encourage you to read the entire post.
Defendant asserted his Fifth Amendment privilege against self-incrimination throughout the discovery phase of a civil trial. During the fourth week of trial he attempted to waive the privilege and give substantive testimony.
The Wisconsin Court of Appeals upheld the decision of the trial judge to prohibit the the witness from withdrawing his assertion of the privilege. The Court explained as follows:
Invoking the privilege during discovery only to later withdraw the privilege may give the invoking party a decided advantage in that he or she can delay having to answer questions until after having had the opportunity to watch the adverse party’s case develop. It allows the invoking party to conceal information and then tailor the invoker’s own version of the events to meet the opposition’s theory of the case and the evidence garnered in support of it.
The proper sanction and accommodation ultimately depends on the particular facts of a case. The trial court may decide that a complete bar to testimony is unnecessary. See, e.g., F.T.C. v. Kitco of Nev., Inc., 612 F. Supp. 1282, 1291 (D. Minn. 1985) (allowing the defendant to testify even though he had previously invoked his Fifth Amendment privilege during discovery because the plaintiff was not unfairly surprised); see also Certain Real Prop., 55 F.3d at 84 n.6 (listing different potential sanctions). If the late withdrawal does not in fact unduly prejudice the adversary, and if there is nothing to suggest the attempted withdrawal was used abusively or to gain an unfair tactical advantage, then the court should be especially inclined to permit the withdrawal. Certain Real Prop., 55 F.3d at 84. However, as long as a trial court considers the relevant factors and acts with moderation to accommodate both a litigant’s valid Fifth Amendment interests and the opposing parties’ needs in having the litigation conducted fairly, Certain Real Property stated that it would not disturb the measures used by that court in the exercise of its discretion. Id. at 83 n.4, 85.
The Winning Trial Advocacy Tips blog has a great post titled "Sources for Closing Argument Stories." The post identifies nine different sources for stories that can be used in closing arguments.
Here is brief excerpt:
1. Aesop’s Fables. Aesop’s Fables contains dozens of valuable themes for use in your next trial. By weaving these fables into your closing argument, you’ll help jurors immediately understand the underlying values of your arguments and see why your client deserves to win. The Tale of the Sour Grapes, the Tale of the Lioness and the Vixen, the Tale of the Wolf in Sheep’s Clothing — these stories will not only educate your jurors, they’ll also entertain them.
Jim McElhaney is one of the best-known trial advocacy professors in the country and his "McElhaney on Litigation" columns in the ABA Journal are read by hundreds of thousands of lawyers each month.
"Give Chronology a Timeout" is in the October, 2009 edition of the ABA Journal and is a re-print from an article published seven years earlier. Those of you who attend AAJ seminars will find that it promotes what plaintiff's lawyers call "storytelling."
Paul Luvera's blog, Plaintiff Trial Lawyer Tips, includes a recent post from Paul titled "My General Views About Plaintiff Trial Work." I recommend the entire post to you, but here is a excerpt to wet your appetite for the rest:
Most important, our trials must be focused and limited to this approach. We should not just wing it and start talking because we all talk entirely too much and we are very boring people to jurors and judges. This requires discipline. It means we must abandon the idea that we are charming people the jurors and judges enjoy listening to, or that we need to demonstrate to the witness or the judge or our opponent how intelligent we are, or how well informed we are, or even that we are right. The truth is that it requires a lot of self control to try a big picture case because we don't care what the witness or our opponent thinks of our intellectual ability, our knowledge of the subject matter, etc., etc. All we care about is the impression on the jury. It is the ability to stop making us the center of attention and instead make the jury the center of attention. In the end, it is our ego that drives us to intellectual battles that hurt our case.
Unfortunately, I have been in a trial where opposing counsel repeatedly violated a Court's order on a motion in limine. Therefore, I must admit I took some pleasure in reading this opinion where the Roman Catholic Diocese of Burlington, Vermont was sanctioned because its counsel violated such an order. The sanction? A mistrial and an award of $112,000 in sanctions.
This is how the Court summarized what occurred that gave rise to an award of sanctions:
Before the June trial, plaintiff filed a motion in limine to exclude any reference to a sexual relationship between Willis [a Roman Catholic priest] and plaintiff's brother. The trial court granted this motion, stating that "[d]efense questions about this subject are barred as being irrelevant to the case before the court." During its cross-examination of plaintiff, defendant inquired into this relationship. The court sustained numerous objections from plaintiff during the cross-examination. During a break in the trial, the trial court entertained plaintiff's motion for a mistrial and costs. At that time, defendant indicated that it wanted reconsideration of the pre-trial ruling prohibiting it from showing that plaintiff's brother and Willis had a sexual relationship. The court orally granted plaintiff's motion, followed by a written ruling when plaintiff moved for the imposition of costs. The court concluded that during the cross-examination, defendant's attorney "repeatedly and deliberately violated the court's pre-trial ruling by asking questions which were designed to tell the jury about this relationship." The court granted plaintiff's motion for mistrial "because nothing short of a mistrial could have cured the prejudicial effects of defense counsel's repeated violation of the trial court's pre-trial ruling."
On appeal, the defendant did what one would expect - blame the plaintiff's lawyer, blame the judge, and argue that the Order on the motion in limine wasn't clear. My favorite argument - and that Court's rejection of it - is set forth below:
Defendant argues that it did not know it was risking a mistrial and sanctions. As discussed above, defendant disobeyed the court's order. The trial court had no obligation to specifically warn defendant that such a violation may result in a mistrial and sanctions. As we have held above, the court had the power to declare a mistrial and impose sanctions for violation of the pre-trial order, and lawyers are expected to know of this power. For the above reasons, we hold that the superior court acted within its authority in declaring a mistrial and imposing a compensatory sanction on defendant. We affirm the court's action.
Those of you who are parents last heard such an argument from a pre-teen child - "You didn't tell me that I couldn't go to Jimmy's birthday party if I didn't clean my room!"
Plaintiff's lawyers are in a difficult position when opposing counsel willfully violate a Court's order on a motion in limine. Asking for a mistrial usually means another trial months later and spending hundreds of hours preparing for it. And, depending when the wrongful conduct occurs, it means that your opponent has gotten a good look at your case, which means you have to weigh the harm caused by the misconduct against re-trying the case after you have put your cards on the table.
The trial judge and the Supreme Court of Vermont are to be congratulated for having the courage to hold the defendant accountable for this misconduct. The kudos are even more warranted because 40% of the citizens in Vermont belong to the Roman Catholic Church.
The case is Turner v. Roman Catholic Diocese of Burlington, Vermont, 2009 VT 101 (Oct. 9, 2009).
Note: for those of you that have followed the tsunami of litigation against various Roman Catholic dioceses in these cases, the Vermont Court joined a long list of other courts in saying that the church could not avoid its responsibility by hiding behind the First Amendment.
How do you get computer-generated business records admitted into evidence? The same way you get other business records admitted into evidence, according to the Ninth Circuit Court of Appeals.
In U-Haul Intern., Inc. v. Lumbermens Mut. Cas. Co., _ F.3d _ (9th Cir. Aug. 12, 2009) (No. 07-16187) affirmed a district court's decision to admit the computer-generated business records into evidence to show payment of indemnity claims and loss adjustment expenses. The appellate opinion reminds us of the four basic steps to admit business records into evidence under FRE 803(6):
As the district court found (1) the underlying data was entered into the database at or near the time of each payment event; (2) the persons who entered the data had knowledge of the payment event; (3) the data was kept in the course of Republic Western’s regularly conducted business activity; and (4) [claims manager] Mr. Matush was qualified and testified as to this information.
Did the fact that the records were kept on a computer change the analysis? No?
We have made clear that ‘[f]or the purposes of Rule 803(6), it is immaterial that the business record is maintained in a computer rather than in company books.’ A logical extension on that principle is that evidence that has been compiled from a computer database is also admissible as a business record, provided it meets the criteria of Rule 803(6). Accord United States v. Fujii, 301 F.3d 535, 539 (7th Cir.2002) (holding that computer data compiled in the ordinary course of business and presented in computer printouts prepared for trial is admissible under Rule 803(6)); Potamkin Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d 627, 632 (2d Cir. 1994) (“A business record may include data stored electronically on computers and later printed out for presentation in court, so long as the original computer data compilation was prepared pursuant to a business duty in accordance with regular business practice.”) (citation and internal quotations omitted); see also B. Weinstein and M.A. Berger, Weinstein’s Federal Evidence § 901.08[1] (2d. ed. 2006) (stating that “printouts prepared specifically for litigation from databases that were compiled in the ordinary course of business are admissible as business records to the same extent as if the printouts were, themselves, prepared in the ordinary course of business. The important issue is whether the database, not the printout from the database, was compiled in the ordinary course of business”).
TRE 803(6) is substantially similar to FRE 803(6).
Thanks to the Federal Evidence Blog for bringing this opinion to my attention.
A post from the Mass Tort Defense blog highlights a real problem: jurors conducting independent research during trials. Indeed, in the case featured in the post, the juror conducted the research before the trial (after he received his summons to serve as a juror) but shared what he knew during deliberations. The result? A reversal of a defense verdict.
The blog post does a nice job summarizing Russo v. Takata Corp., 2009 WL 2963065 (S.D. 9/16/09). You can read the entire opinion here.
Here is an excerpt from Sean Wajert's summary:
The state Supreme Court noted it was announcing no hard and fast rule that all such types of Internet research by a juror prior to trial without notice to the court and counsel automatically doom a jury's verdict. Rather, the court gave deference to the trial court, which had the distinct advantage of being present throughout the nineteen-day trial. The trial court was in the best position to determine whether material was extrinsic to the issues before the jury, or whether the extraneous material prejudiced the jury. The trial court's award of a new trial was affirmed.
The reasoning: statutory language in many jurisdictions limits the type of information that a juror may be asked to provide via an affidavit or under oath at a hearing on a motion for new trial. And that's the only way, typically, for a litigant to show juror conduct. The prohibition on admitting testimony and affidavits pertains to intrinsic information, which includes statements or discussions which took place during deliberations. Testimony and affidavits concerning extrinsic information, however, may be obtained from a juror. Extrinsic information includes media publicity, conversations between jurors and non-jurors, and evidence not admitted by the court. It also includes “knowledge relevant to the facts in issue not obtained through the introduction of evidence but acquired prior to trial, experiments, investigations, news media, etc.” Secondly, the type of after-acquired information that potentially taints a jury verdict should be carefully distinguished from the general knowledge, opinions, feelings and bias that every juror carries into the jury room.
This opinion reminds us of the need to urge the trial judge to repeatedly remind the jurors that they should not do independent research.
The Tennessee Supreme Court has asked for public comment on proposed changes to the rules of procedure and evidence. The Order asking for public comment can be viewed here.
I serve on the Court's Advisory Commission on the Rules of Practice and Procedure and I am happy to report that the Court has accepted (at least for purposes of public comment) each of the rule changes proposed by the Commission.
Significant proposed changes to the rules of civil procedure include changes to clarify Rule 3 and 4 concerning the need to serve a summons and complaint promptly after filing of the complaint and issuance of the summons, Rule 5 concerning the electronic service of pleadings, motions and other documents, and Rule 26 concerning the discovery of insurance policy limits. The most significant change to the rules of evidence is new Rule 502 concerning the inadvertent waiver of the privilege.
The trial of virtually every personal injury or wrongful death case involves the use of one or more photographs.
The recent decision in Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, __ F.3d __ (2d Cir. July 6, 2009) (No. 08-0639-CV) reminds us that the failure to lay a proper foundation will result in exclusion of photographs at trial. The opinion reminds us that the "standard for admissibility of photographs requires the witness to recognize and identify the object depicted and testify that the photograph is a fair representation of what it purports to portray." The witness attempting to authenticate the photographs identified the object but was not asked whether the photograph was a fair and accurate representation of the object. The exclusion of the photograph was affirmed on appeal.
Recall that "[t]he witness qualifying a photograph ... does not need to be the photographer or see the picture taken. It is only necessary that he recognize and identify the object depicted and testify that the photograph fairly and correctly represents it.” Kleveland v. United States, 345 F.2d 134, 137 (2d Cir. 1965)
There are so few trials that it is easy to forget the rules concerning the admissibility of evidence. In addition, many of our adversaries don't know the rules either, and thus the "right" way of doing things slips from memory. But, as this case tells us, there are some adversaries and judges who are sticklers on the law of evidence, and thus it is necessary to refresh our recollection of the evidence law relevant to our case just in case we face an adversary or judge who forces us to follow it.
Thanks, once again, to the Federal Evidence Blog for informing me about this opinion.
You read the title correctly. Apparently Bill Bone in Florida believes that his adversary "wears shoes with holes in the soles when he is in trial." He believed that defense counsel did so "as a ruse to impress the jury and make them believe that [his adversary] is humble and simple without sophistication."
Relief sought? The Court was asked to require defense counsel without holes in the soles of his shoes at trial.
Thanks to Jeff Boyd for passing this on.
Georgia has a pattern jury instruction called the "hindsight" instruction. It provides as follows:
In a medical malpractice action, a defendant cannot be found negligent on the basis of an assessment of a patient’s condition that only later, in hindsight, proves to be incorrect as long as the initial assessment was made in accordance with reasonable standards of medical care. In other words, the concept of negligence does not include hindsight. Negligence consists of not foreseeing and guarding against that which is probable and likely to happen, not against that which is only remotely and slightly possible.
In Smith v. Finch , S08G1845 (Ga. June 29, 2009) the Georgia Supreme Court reversed a jury verdict for the defense and held that this instruction should not have been given. The court said as follows:
The third sentence of the hindsight charge, however, goes far beyond this non-controversial notion and is actually inconsistent with the standard of care in many medical malpractice cases. As Georgia courts have recognized, the applicable standard of care often requires employment of a “differential diagnosis” methodology, whereby “‘[t]he physician considers all relevant potential causes of the [patient’s] symptoms and then eliminates alternative causes based on a physical examination, clinical tests, and a thorough case history.’” (Footnote omitted.) Shiver v. Georgia & Florida Railnet, Inc., 287 Ga. App. 828, 829 (1) (652 SE2d 819) (2007). See also Hawkins v. OB-GYN Assocs., 290 Ga. App. 892, 893 (1) (660 SE2d 835) (2008) (describing differential diagnosis methodology); Cherry v. Schwindt, 262 Ga. App. 48, 48- 49 (584 SE2d 673) (2003) (same). In this case, for example, appellants presented expert testimony to the effect that RMSF [Rocky Mountain Spotted Fever] should have been included in the physicians’ respective differential diagnoses because of Justin’s presenting symptoms and the fact that it was summertime in Georgia, as well as because of the disease’s potentially severe effects if left untreated. Having heard this testimony, the jury was then instructed, via the third sentence of the hindsight instruction, that, as a matter of law, negligence may not be found if the injury is “only remotely and slightly possible.” Given the evidence that RMSF is a disease that is relatively rare, i.e., “slightly possible,” this language effectively instructed the jury to disregard appellants’ experts’ characterization of the standard of care.
The court also said that "the third sentence of the hindsight charge ... instructs juries that liability may be premised only on those injurious results that are “probable and likely to happen.” As such, it is inaccurate and misleading." [Footnote omitted]. Why? Because |[g]eneral negligence law holds that negligence may be established where it is shown that “by exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or
that consequences of a generally injurious nature might have been expected.”
The court also announced its disapproval of the second sentence of the instruction because "it
adds nothing of substance to the first sentence and, being thus duplicative, may serve to unduly emphasize the notion that hindsight has no role in the assessment of negligence."
Read the opinion here.
Thanks to Torts Prof for alerting me about the decision.
The United States Court of Appeals for the Tenth Circuit has reversed a $2.4 million jury verdict for the plaintiff because of misconduct by plaintiff's counsel during closing argument.
In the words of the Court: "We are compelled to reverse and remand for a new trial because of pervasive and improper remarks by Mr. Whittenburg’s counsel in closing argument to the jury. Counsel spent the bulk of his argument placing before the jury fictitious admissions never uttered by defendants and launching vituperative and unprovoked attacks on defendants and their counsel."
The offending argument, an imaginary letter that the defendant sent to the plaintiff's children, is fully set forth in the opinion.
The Court also said this:
In light of the confluence of these three factors – the extensiveness of the improper remarks, the absence of any meaningful curative action, and the size of the verdict – we find ourselves compelled to conclude that this case must be retried. In so concluding, however, we underscore that our decision is not based on any one of these factors singly, but rather their combination after considering the argument as a whole. We also emphasize that closing argument need not, nor should, be a sterile exercise devoid of passion. Parties are “entitled to have someone speak with eloquence and compassion for their cause.” Draper, 580 F.2d at 95. “Arguments may be forceful, colorful, or dramatic, without constituting reversible error.” Kelly, 84 F.2d at 576. Counsel may “resort to poetry, cite history, fiction, personal experiences, anecdotes, biblical stories, or tell jokes.” Stein, supra at § 1.14 (Scope of permissible argument). But one thing they may not do is use closing argument to introduce massive amounts of putative evidence not in the trial record and then proceed to launch broadside attacks on an opposing party’s right to bring suit or defend itself. While always reluctant to reverse the district court in matters concerning trial misconduct, and to burden both that court and the parties with a new trial, our appellate role – a role that compels us to mark and guard the outer boundaries of acceptable trial conduct – does not permit us to sit this one out.
The case is Whittenburg v. Werner Enterprises, Inc., No. 07-6063, 07-6119 (10th Cir. April 3, 2009). Read it here.
Paul Luvera does it again, this time with a nice post on conducting direct examinations on his blog. Plaintiff Trial Lawyer Tips
An excerpt:
Evidence is like an iceberg. The bottom below the surface may be enormous, but only the tip is can be seen above the water line. That’s how your examination should be framed. Only a small amount of the facts are really significant or persuasive. Concentrate on that twenty percent this is significant and ignore all the rest. Focus your case. Identify the issues that count. Stick with those issues. ignore the rest that is not highly relevant. Use a rifle not a shot gun approach in your examination of witnesses.
What is the standard to be applied when a judge faces a recusal motion? The Tennessee Supreme Court answered that question yesterday in Bean v. Bailey, No. E2007-02540-SC-S10-CV (Tenn. Mar. 26, 2009).
Here is the standard:
a recusal motion should be granted when “the judge has any doubt as to his or her ability to preside impartially in the case” or “‘when a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.’” Davis, 38 S.W.3d at 564-65 (quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994)). Even if a judge believes he can be fair and impartial, the judge should disqualify himself when “‘the judge’s impartiality might be reasonably questioned’” because “the appearance of bias is as injurious to the integrity of the judicial system as actual bias.” Id. (quoting Tenn. Sup. Ct. R. 10, Canon 3(E)(1)).
Here is a summary of the ruling:
After a thorough review of the record, we believe that the past acrimonious relationship between Judge Wilson and members of Mr. Rogers’ law firm provides a reasonable factual basis for doubting Judge Wilson’s impartiality. Judge Wilson requested twice that the T.B.I. investigate Mr. Rogers for criminal conduct and accused Mr. Rogers and members of his firm of tampering with political polls and having knowledge of a wiretap on Judge Wilson’s phone. Both Judge Wilson and Mr. Rogers filed claims for misconduct against one another. Numerous hostile meetings took place between Judge Wilson and members of Mr. Rogers’ firm, and further, the public had knowledge of the parties’ antagonistic relationship. Reviewing the quantity and quality of these contacts between Judge Wilson and members of Mr. Rogers’ law firm, we are unconvinced that the passage of time removes the appearance of bias and prejudice.
Paul Luvera has written an interesting post on neuro linguistic programming. Those of you who have studied concepts such as mirroring and anchoring have explored some of the concepts that make up this field as applied to our craft.
The Oxford English Dictionary defines NLP as "a model of interpersonal communication chiefly concerned with the relationship between successful patterns of behaviour and the subjective experiences (esp. patterns of thought) underlying them" and "a system of alternative therapy based on this which seeks to educate people in self-awareness and effective communication, and to change their patterns of mental and emotional behaviour."
I was introduced to this subject ten or more years ago by Eric Oliver, a trial consultant from Michigan. Eric is scary smart and the author of Facts Can't Speak for Themselves.
Here is another article on the topic. This is a fascinating subject.
Both the federal courts and Tennessee state courts have strict rules about the types of inquiry that can be made into a jury's verdict. The general rules for impeaching a jury verdict are set forth in Rule 606(b) of the rules of both systems and in a relatively few number of cases. Why so few? First, there are very few trials and therefore very few verdicts to impeach. Second, there are even fewer cases where the parties can afford to thoroughly investigate what goes on "behind the curtain."
United States v. Siegelman is an extraordinary case involving a criminal charges against the then-Governor of Alabama. He was convicted, looked behind the curtain, found evidence of juror misconduct concerning exposure to extraneous information and improper communications during the deliberation, and brought it to the attention of the court. The court then made its own inquiry, calling the jurors to a hearing and examining them. The court determined that some me embers of the jury saw “(1) a copy of the Second Superseding Indictment obtained from the district court’s own website; and (2) juror information from the website concerning the foreperson’s obligation to preside over the jury’s deliberations and to give every juror a fair opportunity to express his views.”
The trial court dismissed the allegations of jury misconduct, and last week the 11th Circuit affirmed the trial judge's decision. Here is a summary of the opinion as contained on the extraordinary Federal Evidence Blog. Here is a copy of the 11th Circuit opinion.
Here is the summary from the Federal Evidence Blog:
In sum, the allegations in the case of juror misconduct and exposure to extrinsic evidence were serious and grounded on claims of violating the Sixth Amendment. However, the trial court conscientiously held a hearing to determine the scope of the exposure to extrinsic evidence. Based on the facts of the case, and the limited nature of the exposure, the error was harmless beyond a reasonable doubt. The circuit agreed that the trial court was constrained to hold a post-verdict investigation inquiring into the jury deliberations. The case highlights the manner in which these types of challenges may be considered.
A motion in limine to prevent your adversary from performing magic tricks in closing argument?
Read all about it here from the Litigation and Trial Blog.
How do you impeach by contradiction? The Federal Evidence Review Blog has a fine summary of a recent case from the Third Circuit that provides a “textbook example” of how one sets up an impeachment by contradiction and how the impeachment evidence comes before the jury even though it is not otherwise admissible.
An excerpt from the blog: “the introduction of the prior conviction evidence was “authorize[ed] under FRE 607 as impeachment by contradiction. After the defendant testified about a particular fact, the government could show that “the defendant lied as to that fact.” Gilmore, __ F.3d at __ (citing United States v. Greenidge, 495 F.3d 85, 99 (3d Cir. 2007) (no error in prosecution cross examination of bank fraud defendant about consumer and criminal complaints made against her in light of her volunteered denial that any such complaints had been made against her)).
Paul Luvera has another great post on his outstanding blog, Plaintiff Trial Lawyer Tips.
A sample: "Focusing on the bad conduct of the defendant shifts the availability bias and causes the defendant to be the subject to the greater weight of scrutiny instead of plaintiff. Start with defendant's conduct."
Enjoy.
Professionally speaking, it is hard to have a worse day than having a United States Supreme Court justice say this: " “I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.”
That is what Justice Souter said to Jennifer Smith, a lawyer in the Tennessee Attorney General's Office.
Read more here.
Ten days or so ago I included a post from Paul Luvera's blog about the importance of using checklists for taking the deposition of an eye witness.
Here is another post from Paul. This time he is sharing a checklist on information you should share with your client about the trial process. It includes suggestions for how the client should act during the trial and how to act during cross-examination.
Thanks again, Paul.
Paul Luvera has offered-up a list of his talking points for trial, an example that can be applied to a myraid of cases. See them here.
The age old question: should I try it or accept the offer the defense has made?
This article in the New York Times reports on an article that will appear in the September edition of the Journal of Empiral Legal Studies on the subject on settling cases. The article will address a study of 2,054 cases that went to trial from 2002 to 2005. The bottom line: "“The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more,' said Randall L. Kiser, a co-author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions. "
The NYT article goes on to say as follows: "Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered."
Smart defense counsel admit liability in cases where liability cannot seriously be questioned.
What will defense counsel do to hold the damages number down? Read about the strategy of one defense lawyer in this article - Defending the Damages-Only Case. The article is published in the Winter 2008 edition of Federation of Defense and Corporate Counsel Quarterly and was written by Mercer K. Clarke.
Thanks to Trial Ad Notes for telling me about the American Society of Trial Consultants website and, more importantly, about their electronic newsletter, The Jury Expert. The newsletter is published bimonthly. A subscription is free.
You can download past issues here.
The General Assembly has ratified changes to the Tennessee Rules of Evidence, Civil Procedure, and Appellate Procedure.
Here is the Order setting forth the rules changes for the TRE, TRCP, and TRAP.
The most significant change for tort law practitioners is the change to TRCP 59.07. This language will be added to the end of the current language: "A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury for any of the reasons for which new trials have heretofore been granted." The new comment provides that "[m]otion for new trial grounds have been governed by case law. A helpful list can be found
in Professor Larry A. Pivnick’s treatise, Tennessee Circuit Court Practice §28:1 (Thomson West)."
The rule changes are effective July 1, 2008.
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 ă4.03[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)
Civil Rule 14 (Third-Party Practice) (conforming amendment pertaining to Supplemental Rule G)
Civil Rule 16 (Pretrial Conferences; Scheduling; Management) (establishes process for the parties and court to address early issues pertaining to the disclosure and discovery of electronic information)
Civil Rule 26 (General Provisions Governing Discovery; Duty of Disclosure) (requires parties to discuss during the discovery-planning conference issues relating to the disclosure and discovery of electronically stored information)
Civil Rule 33 (Interrogatories to Parties) (expressly provides that an answer to an interrogatory involving review of business records should involve a search of electronically stored information)
Civil Rule 34 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes) (distinguishes between electronically stored information and "documents")
Civil Rule 37 (Failure to Make Disclosure or Cooperate in Discovery; Sanctions) (creates a "safe harbor" that protects a party from sanctions for failing to provide electronically stored information lost because of the routine operation of the party's computer system)
Civil Rule 45 (Subpoena) (technical amendments that conform to other proposed amendments regarding discovery of electronically stored information)
Civil Rule 50 (Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional Rulings) (permits renewal after trial of any Rule 50(a) motion, deleting the requirement that a motion made before the close of all the evidence be renewed at the close of all the evidence)
Civil Rule 65.1 (Security: Proceeding Against Sureties) (conforming amendment pertaining to Supplemental Rule G)
Form 35 (Report of Parties' Planning Meeting) (technical revision reflecting the proposed amendment to Civil Rule 26)
Supplemental Rule G (Forfeiture Actions in Rem) (establishes comprehensive procedures governing in rem forfeiture actions)
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 408 (Compromise and Offers to Compromise) (resolves conflicts in caselaw about statements and offers made during settlement negotiations admitted as evidence of fault or used for impeachment purposes).
Evidence Rule 606 (Competency of Juror as Witness) (clarifies that juror testimony may be received only for very limited purposes, including to prove that the verdict reported was the result of a clerical mistake)
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, ă 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. ă 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.
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