Lane Haygood, of Haygood Law in Odessa, Texas, offered a series of tweets on conducting cross-examination. They are repeated below.
The American College of Trial Lawyers’ Task Force on Advocacy in the 21st Century has released five papers designed to help judges and lawyers face legal and practical issues that arise from the use of remote video. The Task Force, appointed by the College’s Executive Committee, includes judges and lawyers from the United States and Canada with a broad range of experience in criminal and civil law.
Each Interim Guideline addresses a topic of interest to civil trial lawyers: depositions, hearings, nonjury trials, and appellate arguments. Of special interest is a paper called “Mastering Zoom Advocacy,” which is helpful regardless of the remote video application used.
Where a plaintiff made a tactical decision to withhold certain evidence during its case-in-chief and instead attempted to introduce the testimony as rebuttal evidence, the evidence was not be allowed and was deemed to “contradict [plaintiff’s] own proof.”
In Alumbaugh v. Wackenhut Corporation, No. M2016-01530-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2018), plaintiff’s father was shot and killed by an armed security guard at a Pilot travel center, and plaintiff filed this wrongful death action against the security guard company who employed the shooter. On the night of the incident, decedent and a female companion had been drinking heavily and were traveling home when decedent pulled his vehicle into the back lot of a Pilot, which was reserved for tractor-trailer trucks. During plaintiff’s case-in-chief, she presented the videotaped testimony of decedent’s female companion, who testified that decedent was standing in the passenger doorway of the car when the guard approached and that the altercation only lasted a few minutes. According to this testimony, decedent was the aggressor, the guard tried to calm decedent down, and the guard tried to handcuff decedent. While the guard was trying to call someone, decedent pushed the guard against a truck, overpowered him, and was on top of him when the guard pulled out his gun and shot decedent.
In defendant’s case-in-chief, it presented evidence that the guard had previously been in the army and that it had not received any complaints about the guard’s job performance, although a supervisor at Pilot “admitted that he had intervened between [the guard] and others on occasion.” The guard testified that on the night in question he tried to call for assistance, but that “the next thing he knew, [decedent] was on top of him, hitting his head and face,” and that “he felt a tug on his belt and believed the man was reaching for his gun” before the guard shot decedent.
Where defendant had the proper affidavit to authenticate plaintiff’s medical records related to treatment she received prior to a car accident, the trial court erred by excluding the evidence.
In Goodwin v. Hanebis, No. M2017-01689-COA-R3-CV (Tenn. Ct. App. Aug. 29, 2018), plaintiff was injured in a car accident with defendant. The jury awarded her $70,000 in damages, including an award for all the medical expenses for which she presented proof and damages for pain and suffering, permanent injury, and loss of enjoyment of life. The trial court reduced the award by $1,004 to reflect the correct amount of medical expenses presented at trial, and defendant appealed citing several issues, including whether the trial court erred by excluding evidence of medical treatment plaintiff had received before the accident. The Court of Appeals ruled that some of the previous medical records should have been admitted and accordingly vacated the judgment.
Before the trial, plaintiff had filed a motion in limine to exclude her prior records from two clinics, Greenview and Bowling Green. Plaintiff asserted that defendant “clearly wishe[d] to introduce these records to argue that [plaintiff] had preexisting conditions that caused the injuries complained of in this lawsuit.” The trial court granted the motion and disallowed the records.
Tennessee’s personal injury and wrongful death jury trials and judgment amounts continue at historic lows.
In the fiscal year ending June 30, 2016, only 396 personal injury and wrongful death cases went to trial. Of those 396 trials, only 190 were jury trials – the rest (206) were non-jury trials. For the year earlier (2014-15) there were 367 trials, 183 of which were jury trials and the balance (187) were non-jury trials.
At first glance this shows that the number of jury trials actually increased in 2015-16 190 vs. 183), but it is important to note that the number of tort cases disposed of during 2015-16 actually went up over 10% (10,951 vs. 9695) so one would have expected an even larger increase in the number of jury trials. Only 3.5% of a case dispositions were resolved by a jury or non-jury trial – the other 96.5% of cases were settled or dismissed.
Not every fall results in a successful premises liability case, as the plaintiffs in a recent Tennessee Court of Appeals case were reminded.
In Woodgett v. Vaughan, No. M2016-00250-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2016), plaintiff filed suit after falling while she was viewing defendants’ home, which was listed for sale. Plaintiff’s husband was a realtor, so he contacted the listing agent about viewing defendants’ home. Defendants had already moved out and removed all of their belongings, so plaintiff and her husband were allowed to view the home on their own. In the upstairs bonus room there was a door that led to the attic access. The landing that accessed the attic was raised, so defendants had hired someone to build a wooden box to use as a step to get to the landing. The step was made with two-by-twelves, measured 9.5 inches high, 39 inches wide and 10.75 inches deep, and was covered with carpet. The step could be moved out of the way and was not affixed to the landing, as it was sometimes moved to accommodate furniture passing through the area. Defendants had “used the step for twenty years without incident.” According to plaintiff, when she used the step while viewing the home, it “gave way” and made her fall.
The Tennessee Court of Appeals recently vacated a judgment in a car accident case after finding that the “jury’s damages award [was] not supported by material evidence.” In Naraghian v. Wilson, No. W2014-02002-COA-R3-CV (Tenn. Ct. App. Nov. 12, 2015), plaintiff’s car was struck from behind by defendant’s vehicle. According to plaintiff, she had come to a complete stop at a red light and was then hit. Defendant asserted, though, that he slowed down for the red light, but the light then changed to green and plaintiff began driving off, only to suddenly stop and cause the accident.
At trial, plaintiff presented evidence regarding her medical damages. Her treating chiropractor testified that “the treatments he provided were reasonable and necessary and stated that [plaintiff’s] injuries were the result of the traffic accident involving [defendant].” The total bill for plaintiff’s treatment was $13,440, and there was no real dispute at trial regarding the reasonableness or necessity of the charges. “Defense counsel did not submit any witness controverting the reasonableness of the charges that were billed, nor did defense counsel submit any proof rebutting the medical opinions testified to by [the chiropractor] as to the reasonableness or necessity of the treatment or as to the medical causation as a result of this accident.”
The jury found in favor of plaintiff and found her damages to be $7,831.67. Although the jury found defendant to be responsible, they also apportioned 44.58% of the fault to plaintiff, so her damages were accordingly decreased. After having her motion for a new trial denied, plaintiff appealed, asserting that “the damages awarded by the jury were disproportionate to the amount of damages proven at trial.”
When do statements by counsel to a Tennessee judge in open court give rise to a binding settlement between the parties?
In Harvey v. Turner, No. M2014-00368-COA-R3-CV (Tenn. Ct. App. March 26, 2014), three parties had been involved in protracted litigation regarding property issues for six years. The matter finally went to trial, and after three days of testimony, the trial went on a short hiatus. During that time, counsel for all the parties exchanged emails and phone calls and eventually came to an agreement in principle. When the trial resumed, the attorneys appeared to announce the settlement to the court. By agreement, the parties themselves did not attend. The attorneys announced the terms to the court and affirmed to the court that their parties had agreed to the settlement, the parties agreed that the trial court would retain jurisdiction to enforce the settlement, and the court accepted the settlement.
Subsequently, the parties were unable to come to an agreement on a final written settlement document, so a hearing was held. The defendant asserted that a sewer line was supposed to be included in the agreement, but the trial court disagreed. The trial court found that “there was a meeting of the minds and that that issue was not part of it.” The trial court held that there was an enforceable settlement agreement, and defendant appealed.
The judge’s in Tennessee’s 23rd Judicial District – Cheatham, Dickson, Houston, Humphreys and Stewart Counties – have adopted new rules of court for the circuit and chancery courts.
Among the new rules is a requirement that all civil cases except appeals from the general sessions court be mediated before they can be set for trial. Rule 3.04.
The Tennessean has a fascinating video interview of Todd Easter, one of the jurors in the Corey Batey and Brandon Vandenburg rape trial. Juror feedback in any case gives trial lawyers helpful information about how to present information to a jury. Mr. Easter’s interview yielded the following reminders:
1. Under Promise and Over Deliver — In the Vanderbilt rape trial, one of the areas in which the lawyers over promised was the expected length of the trial. The initial projection by the lawyers was 9 days. Instead, the trial took 3 weeks. Mr. Easter mentions this twice in his interview. Since it sounds like both sides underestimated the time needed, the jurors were probably not mad at either side. But, if one side unilaterally makes a commitment on time (or evidence) and does not deliver, it could get ugly. So, Mr. Easter’s interview reminds us to be respectful of jurors time and under promise and over deliver.
2. Digital Evidence is Hard to Overcome – If you are unfamiliar with the Vanderbilt rape case, the rape of the unconscious woman was videotaped and then shared with friends. In addition, cameras in the dorms captured the defendants carrying the unconscious victim into the dorm and then later depositing her naked in the hallway. Not surprisingly, the jurors found this evidence to be compelling and “impossible to refute”, which takes us to the next point.