Articles Posted in Trial

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.

Attorneys for one of the defendants convicted of raping an unconscious student intends to file a motion for a mistrial based on juror misconduct. Specifically, the juror in question was a rape victim and allegedly failed to disclose that fact during voir dire questioning. Defense attorneys contend the juror was asked about past experiences with the criminal justice system as either a victim or defendant, and this juror failed to respond. Yet, an attorney for the juror has issued a statement there was not any misrepresentation. 

Of course, this situation is every trial lawyer’s nightmare, right? There are two possibilities here. First, as the defense contends, the juror concealed her past in the face of a question specifically posed to unveil such an issue. This scenario is a nightmare mostly for the prosecution as now they have a new issue to handle on appeal while trying to hold on to the guilty verdict.

The second possibility is the defense lawyers did not ask the right question to elicit the juror’s past as a rape victim. If this juror did not report the rape to the police, then it is unlikely she had any interaction with the criminal justice system as a victim. Since rape is thought to be one of the most underreported crimes with only about 16% of victims reporting, this scenario is more probable than possible. Needless to say, this is the defense lawyer’s worst nightmare because he failed to simply ask whether any prospective juror was a rape victim.  Instead, he asked a much more general question.

Jason Lee has reviewed my book, Tennessee Law of Civil Trial, on his Tennessee Defense Litigation blog.

Some highlights:

The way I would characterize this book is it is a practical guide to the ins and outs of trial practice.  There are citations to case law throughout the book that can be used to prepare for issues that may come up at trial. 

Here are the verdicts collected by the October, 2014 Tennessee Jury Verdict Reporter:

  • Health Care Liability – epidural steroid injection with back injury – June 27, 2014 – defense verdict in state court in Davidson County
  • Abuse of Process – photographer arrested – August 22, 2014 – defense verdict in federal court in Hamilton County
  • Pedestrian  – child pedestrian hit by car – May 14, 2014 – defense verdict in state court in Shelby County
  • Car Wreck – disk herniation –  February 14, 2014 – $50,313 in state court in Knox County
  • Pedestrian – adult pedestrian hit by car in crosswalk – April 16, 2014 – defense verdict (50-50 fault allocation) in Davidson County 
  • Car Wreck – soft tissue injuries – April 15, 2014 – $3600 in state court in Shelby County 
  • Excessive Force by Police – facial injuries – August 29, 2014 – defense verdict in federal court in Davidson County
  • Car Wreck – soft tissue injuries – March 13, 2014 – defense verdict in state court in Hamilton County
  • Car Wreck – soft tissue injuries – August 16, 2014 – $15,000 verdict in state court in Davidson County
  • Sip and Fall – wrist and knee injuries – August 14, 2014 – defense verdict in federal Court in Greenville
  • Car Wreck – soft tissue injuries – May 22, 2014 – defense verdict in Shelby County
  • Car Wreck – knee injury and low back pain –  May 14, 2014 – $12,940 verdict in state court Davidson County ($40,000 offer of judgment rejected)

Full details on each of these jury verdicts can be obtained from the Tennessee Jury Verdict Reporter.


In Bilbrey v. Parks, No. E2013-02808-COA-CV (Tenn. Ct. App. Sept. 29, 2014), a negligence case arising from a car accident, the Court of Appeals recently addressed two evidentiary issues. Plaintiff, her aunt, and her boyfriend were in plaintiffs car when it ran out of gas. The car was pushed onto the side of the road, though not completely off of it. While the boyfriend and aunt had gone to get gas, defendant came along and collided with plaintiffs car. The incident occurred at night. Plaintiff brought a negligence action against defendant, and defendant counterclaimed asserting plaintiffs negligence. At trial, the jury found both plaintiff and defendant to be 50% at fault. Subsequently, plaintiff appealed two evidentiary rulings made by the trial court.

First, plaintiff asserted that the trial court should not have allowed the boyfriends deposition to be read into evidence by defendant. Plaintiff pointed out that defendant had not subpoenaed boyfriend within the timing specified by local rules, and more importantly, that the evidence presented to show that boyfriend was unavailable by being more than 100 miles from the courthouse was insufficient. The unavailability evidence was fraught with layers of hearsay, and boyfriendsunknown, unproven, and in dispute.s deposition should not have been admitted, it was a harmless error, as the deposition testimony was almost entirely consistent with, and cumulative to, that ofs deposition and the in-court testimony of other witnesses did not result in the admission of the deposition being prejudicial to plaintiff.

Second, plaintiff objected to the testimony of a state trooper who listened to a voice mail from plaintiff to her boyfriend on plaintiffs phone when he arrived at the scene. According to his testimony, plaintiff told her boyfriend on that message that the emergency lights had either gone out or were going low. In affirming the trial courts decision to allow the trooper to testify regarding the voicemail, the Court addressed three major points. One, plaintiff and her boyfriend had both testified that the phones containing this message were either lost or destroyed. Defendant, therefore, could rely on Tenn. R. Evid. 1004 and did not have to produce the original recording. Two, although the trooper had never heard plaintiffs voice prior to listening to the voicemail, he spoke with her soon thereafter and testified that he recognized the voices as the same. The Court found that this was enough to satisfy the voice identification requirements of Tenn. R. Evid. 901. Three, plaintiff asserted that this statement did not fall under the party-opponent admission exception to the hearsay rule as it was not a statement against plaintiffs interest. The Court rejected this argument, noting that any statements by a party, whether against that partys interest or not, may be used by the opposing party. Accordingly, the Court of Appeals affirmed the trial courts judgment.

This is a decision about a divorce trial but we are reviewing it on Day on Torts because we always write about cases involving train wrecks.

Seriously, we will cover this case because it contains some useful reminders about (1) a party’s obligation when briefing issues on appeal; (2) the appropriateness of a court’s use of findings of fact and conclusions of law submitted by a party; and (3) discovery sanctions.   The opinion is 31 pages long and a large portion of those pages are related to the tortured procedural history in the trial court. Rather than recount the history, below is just enough to give you a flavor of what the trial court was confronted with:

1.       The parties had been married 32 years and had 3 grown children.

This appeal arises from a December 24, 2010 motor vehicle accident involving a vehicle driven by Johnny Miller and another vehicle driven by Mr. Moretz. The cause of the accident was hotly contested with both parties claiming the other to be at fault. As for damages, Mr. Miller and his wife, who was a passenger in the vehicle, claimed they sustained soft tissue injuries.  The jury returned a verdict finding Mr. Moretz to be 10% at fault and Mr. Miller 90% at fault. As to Mrs. Miller, the jury found zero damages. On appeal, the Millers took issue with a ruling regarding Mr. Moretz’s prescription drug use on the day of the accident and the trial court’s failure to grant an additur or a new trial on damages as to Mrs. Miller. 

Mr. Moretz’s Prescription Drug Use on the Day of the Accident.

During discovery, the Millers served interrogatories on Mr. Moretz. One interrogatory asked whether Mr. Moretz had consumed any alcohol or drugs in the twelve hours prior to the accident. Mr. Moretz denied doing so.  Under oath in his deposition and for a second time, Mr. Moretz denied drug use on the day of the accident.  Prior to trial, Mr. Moretz moved in limine to prohibit the plaintiffs from introducing any evidence he had taken oxycodone on the day of the accident. Mr. Moretz’s offered that his personal physician had told him he could drive while taking the medication and he provided a letter for his employer to that effect. In support of the motion in limine, Mr. Moretz argued that mere use was insufficient and impairment had to be demonstrated for the prescription drug use to be relevant.  

You file a motion in limine to exclude testimony of defendant’s expert witness.  The motion is denied.  Do you have to object to the testimony of the expert at the time he or she  testifies to preserve the issue for appeal?

Maybe.  The Wyoming Supreme Court has ruled that a later objection must be made unless the trial judge’s ruling excluding the testimony was "definitive."  in Hicks v. Zondag, 2014 WY 16 (Jan. 28, 2014) the  trial court denied the motion in limine but said that its ruling was without prejudice to the right to assert an objection at trial that the proposed evidence was cumulative or otherwise in violation of Rule 403.  Thus, counsel has to object again when the witness testified to properly preserve the issue for appeal.

Tennessee has a similar rule.  In Grandstaff v. Hawks, 36 S.W.3d 482, 488 (Tenn. Ct. App. 2000) then Judge Koch said that if “the trial court has not ‘clearly and definitively’ acted on the motion [in limine], the moving party must renew the motion contemporaneously with the introduction of the objectionable evidence.  Failure to renew the motion will preclude the moving party from taking issue on appeal with the admission of the evidence.”  This language was cited with approval in State v. Banks, 271 S.W.3d 90, 170 (Tenn. 2008) and Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178, 192, fn. 11 (Tenn. Ct. App. 2008).  

It takes a lot of time and money to get a medical malpractice (now called health care liability) case to trial in Tennessee.   Thus, when such cases do get to trial, it is essential that the lawyers and parties follow the orders of the court concerning evidentiary matters such that the case is determined on what the court has ruled the jury should hear, not influenced by matters that the court has determined that the jury should not hear.

There are some lawyers, through ignorance, negligence or intentional misconduct, that violate court orders on motions in limine.   To be sure, such an error can be innocent – in the heat of the battle, mistakes can be made.  And sometimes there can be legitimate disputes on the meaning of a ruling, which reinforces the need for all involved – the judge and the lawyers – to have a firm grasp on the ruling before  making any comment on the subject matter in the presence of the jury. 

I do not know what gave rise to the violations of the court order in Mottershaw v. Ledbetter. 1110959 (Ala. S. Ct. 11/08/13, modified 1/17/14),  The opinion tells us the following 

The law gives parties the right to strike a limited number prospective jurors from serving on a particular jury without demonstrating "cause, but that right is limited by case law designed to prohibit discrimination.  Should a party’s right to peremptorily challenge a juror because of his or her sexual orientation be added to the list?

The issue will be addressed in the Ninth Circuit Court of Appeals in the case of Smithkline Beecham Corp. v. Abbott Laboratories, which is being argued in September 2013.  The issue arose in an antitrust case involving HIV medications.  A lawyer for one of the companies sought to strike a juror because the would-be juror was “or appears to be, could be, homosexual.” 

This blog post from Verdict has a nice summary of the issue.  Here is link to all of the briefs in the Smithkline Beecham Corp. v. Abbott Laboratories case.

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