Articles Posted in Trial

As I mentioned in my February 17, 2013 post about Tennessee personal injury and wrongful death court  filings, the Tennessee Administrative Office of the Court has released  statistics about the Tennessee’s justice system.   Among the data produced is information about the number of personal injury and wrongful death jury trials in Tennessee counties for the year ended 2011-12.

Here is the data for Tennessee’s  counties that actually had jury trials in tort cases:

  • Washington – 5
  • Sullivan – 5 
  • Greene – 3
  • Hamblen – 1
  • Sevier – 6
  • Blount – 2
  • Knox – 28
  • Anderson – 7
  • Campbell – 1
  • Clairborne – 2
  • Loudon – 1
  • Meigs – 1
  • Bradley – 5
  • McMinn – 1
  • Monroe – 2
  • Hamilton – 19
  • Franklin – 3
  • Rhea – 2 
  • Cumberland – 3
  • Putnam – 7
  • Coffee – 3
  • Macon – 1
  • Wilson – 2
  • Rutherford – 9
  • Moore – 1
  • Sumner – 1
  • Montgomery – 4
  • Robertson – 1
  • Davidson – 47
  • Williamson – 3
  • Giles – 2
  • Lawrence – 1
  • Maury – 3
  • Cheatham – 1
  • Humphreys – 1
  • Benton – 1
  • Carroll – 1
  • Henry – 1
  • Fayette – 2
  • Tipton – 1
  • Henderson – 1
  • Madison – 4
  • Obion – 1
  • Weakley – 1
  • Dyer – 1
  • Shelby – 47
  • Warren – 2

There  were a total of 249 total jury trials in Tennessee personal injury and wrongful death cases during the year.  The other 48 counties in Tennessee did not have a single jury trial in a personal injury or wrongful death case in the year which ended June 30, 2012.

The 6th Circuit Court of Appeals has ruled that functional magnetic resonance imaging cannot be used in a criminal case to prove that the defendant’s denials of wrongdoing were true.

Defendant wanted to introduce evidence of the fMRI to prove that he was telling the truth in his criminal trial and that did not intentionally violate the law.  In an issue of first impression, the court of appeals affirmed the exclusion of the evidence.  The court said


that the district court did not abuse its discretion in excluding the fMRI evidence pursuant to Rule 403 in light of (1) the questions surrounding the reliability of fMRI lie detection tests in general and as performed on [defendant] Dr. Semrau, (2) the failure to give the prosecution an opportunity to participate in the testing, and (3) the test result’s inability to corroborate Dr. Semrau’s answers as to the particular offenses for which he was charged.

The Federal Evidence Review Blog has been kind enough to let us know that the federal Judicial Conference Committee on Court Administration and Case Management ("CACM") has issued new proposed jury instructions on the use of social media by jurors.  

"The overwhelming majority of judges take steps to warn jurors not to use social media during trial, but the judges surveyed said additional steps should be taken," said Judge Julie A. Robinson, CACM  Committee chair. "The judges recommended that jurors frequently be reminded about the prohibition on social media before the trial, at the close of a case, at the end of each day  before jurors return home, and other times, as appropriate. Jurors should be told  why refraining from use of social media promotes a fair trial. Finally, jurors should  know the consequences of violations during trial, such as mistrial and wasted time. Those recommendations are now part of the guidelines."
Here are the proposed instructions:

The Winter 2012 edition of the  FDCC Quarterly includes an article called "Juror Misconduct in the Age of Social Networking."   Written by Michael K. Kiernan and Samuel E. Cooley, the article discusses how a juror’s use of social networking tools "can result in a denial of the defendant’s due process rights …."  

I guess it never crossed the mind of these gentlemen that the a juror’s use of these tools could impact the rights of plaintiffs.  

Nevertheless, the fifteen-page article has a collection of cases from around the country that discuss the impact of social networking on jury verdicts.  The subjects include public posting or tweeting about on-going trials, using social media to contact a party or a witness, improper communication among jurors, and Internet research during trial.

It is not uncommon for defendants in severe brain injury, spinal cord or burn injury cases to ask that the plaintiff not be present in the courtroom.  The argument goes that the injured person cannot contribute to the prosecution of the case and therefore the only purpose that they are brought into the courtroom is to gain sympathy.

The Georgia Supreme Court faced this issue in the recent case of Kesterson v. Jarrett, S11G0590 (Ga. S. Ct. June 18, 2012).  A trial judge excluded the minor plaintiff, Kyla Kesterson, a young child with severe cerebral palsy, from the courtroom during the liability phase of a bifurcated medical malpractice trial.  Plaintiffs argued that they did not intend for the minor plaintiff to be present in court for an extended period of time during any phase of the trial, but argued that she had the constitutional right to be present.

The Georgia The Court of Appeals affirmed,  saying that the trial court has discretion to exclude a civil party when the party’s physical and mental condition may generate jury sympathy and her mental condition precludes her from meaningfully participating in and understanding the proceedings.   The support for that position was a decision from our own 6th Circuit Court of Appeals, Helminski v. Ayerst Labs., 766 F2d 208, 218 (6th Cir. 1985)).

A federal court of appeals has ruled that a court may take judicial notice of a Google map image.

In United States v. Perea-Rey, No. 10-50632 (9th Cir. May 31, 2012), the Court of Appeals for the Ninth Circuit ruled that 

We take judicial notice of a Google map and satellite image as a “source[ ] whose accuracy cannot reasonably be questioned,” at least for the purpose of determining the general location of the [defendant’s] home. Fed.R.Evid. 201(b)."  See also Citizens for Peace in Space v. City of Colorado Springs, 477 F.3d 1212, 1219 n.2 (10th Cir. 2007) (taking judicial notice of online distance calculations); cf. Boyce Motor Lines v. United States, 342 U.S. 337, 344 (1952) (“We may, of course, take judicial notice of geography.”) (Jackson, J., dissenting).

Those in positions of power and wealth fear one thing more than parting with their precious money:  they fear that someone will find out what they did.

Thus, we see repeated requests of courts to hide the the conduct of wrongdoers.  Early in a case, these efforts manifests themselves in requests for protective orders to keep documents and deposition testimony private.  Later, it results in confidential settlement offers and settlement offers made conditional on destruction of evidence gathered in discovery and permanent gag orders.  

But the Boy Scouts of America took it one step further: it attempted to keep confidential information about over 1000 ineligible volunteers that was admitted into evidence at trial.  Le me say that again.  BSA attempted to keep secret evidence that was admitted at trial in a case where the Boy Scouts were ordered to pay both compensatory and punitive damages.  

The Utah Supreme Court has called-out a lawyer who repeatedly violated court orderson a several motions in limine.

In Barrientos v. Jones, 2012 UT 33 (June 8, 2012), the trial court granted several motions in limine and held that certain alleged conduct or speculation about the conduct of the decedent and others was not admissible at trial because it was either irrelevant or unfairly prejudicial.  Notwithstanding these orders, Ms. Heather S. White, an attorney for one of the defendants, repeatedly asked questions regarding the forbidden topics.

The repeated violations of the orders on the motions in limine lead to this statement by the Utah Supreme Court:

The $900,000 pain and suffering verdict (which equaled the amount sued for) in a case brought by a woman who contracted herpes after consensual sex with a dentist brings to mind one of best legal articles I ever read about obtaining large verdicts.

First, the facts.  According to an article in the Los Angles Times, Plaintiff  was looking for a long-term relationship and had sex with the Defendant on the fourth date.  She insisted that he wear a condom and he removed it without her knowledge or consent.  Afterward, he told her (in bed) that he had herpes but that  he did not have any lesions at the time.  She asked him to leave and she showed signs of herpes eleven days later.  She filed a negligence and battery claim against the Defendant.  

 Oregon Live reports that the defense lawyer said the following in the presence of the jury: "Grow up. Come on. You’re an adult. He’s an adult. They had sex. … The point is she is not some little innocent victim."  Defense counsel is also reported to have painted the woman as a money-hungry. "Go for a million — that’s plaintiff’s message. … . God bless America. Go for it. Got some coffee to spill on me?"   The jury found 75% fault on Defendant and 25% fault on Plaintiff.

The Cross-Examination Blog is a good blog to add to your reading list.  Written by Ronald H. Clark, the blog is filled within helpful information for personal injury and wrongful death lawyers.

The following is from a recent post titled "Truisms in Cross-Examination:"

David Paul Jones’s Rules of Cross-Examination (Jones was a British barrister who wrote a century and a half ago)

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