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January 26, 2012

Absent Police Misconduct, Jury Decides Witness Reliability

The reliability of witness testimony in criminal cases has long been considered to fall within the province of the jury. The one exception is suggested police misconduct, which courts have held to trigger a duty on the part of the trial judge to preliminarily screen testimony for reliability before sending it to the jury. The Supreme Court reaffirmed these tenets this month when it held that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness’s identification where that identification was not procured under police-arranged suggestive circumstances.

In August 2008, petitioner Barion Perry was arrested for theft and criminal mischief after being found by police at the scene of a car break-in in an apartment building parking lot, based partly on identification from a witness four floors up. That same witness failed to pick Perry’s photo out of a lineup several weeks later. Prior to trial, Perry moved to suppress the identification on grounds that the parking lot scene amounted to nothing more than a one-man lineup.

The New Hampshire courts found otherwise, and the U.S. Supreme Court agreed by an 8–1 vote, ruling that, absent suggestive circumstances arranged by police, due process does not require a judge to screen a witness’s reliability. Coincidentally suggestive circumstances do not suffice to take away what has long been thought the job of the jury. Perry v. New Hampshire, No. 10-8974, 2012 WL 75078 (Jan. 11, 2012).

Keywords: litigation, trial evidence, due process, Supreme Court, witness testimony

—Amy Cashore Mariani, partner, Fitzhugh & Mariani, LLC, Boston, Massachusetts

December 1, 2011

Supreme Court Adopts Amendments to Federal Rules

The Judicial Conference of the United States has reported that the Supreme Court of the United States has adopted the amendments to the Federal Rules of Evidence pursuant to section 2072 of U.S. Code title 28. The chief justice transmitted the amendments to Congress [PDF] on April 26, 2011, and they will take effect on December 1, 2011, unless Congress takes action to reject, modify, or defer them. The amendments shall govern in all proceedings thereafter commenced and, insofar as is just and practicable, all pending proceedings.

The language of the Federal Rules of Evidence has been amended and definitions have been added as part of the general restyling of the rules to clarify, simplify, and make them more easily understood in modern expression and to make style and terminology more consistent throughout. The restyled rules are substantively identical to the existing rules. There was no intent to change any ruling on evidence admissibility.

Keywords: litigation, trial evidence, Federal Rules of Evidence, Supreme Court

—Amy Cashore Mariani, partner, Fitzhugh & Mariani, LLC, Boston, Massachusetts

September 12, 2011

Don't Forget to Offer All Grounds for Admissibility

The Seventh Circuit recently issued a gentle reminder to practitioners seeking to introduce evidence at trial: Don’t forget to make an offer of proof under Fed. R. Evid. 103(a)(2) if the trial court rules your evidence is inadmissible. In Duran v. Town of Cicero, 2011 WL 3444353 (7th Cir. 2011), a federal civil-rights action asserted against police officers and the Town of Cicero, Illinois, by a number of people allegedly injured in a riot occurring after a party to celebrate a baptism, the defendants moved in limine to exclude evidence of a conviction in a prior civil-rights case of the officers and were successful. The plaintiffs unsuccessfully proffered the evidence at trial under one theory of admissibility, Fed. R. Evid. 609(a)(2), but proffered no alternative theories.

On appeal, the plaintiffs urged the Seventh Circuit to find the district court’s ruling in error. The Seventh Circuit ruled that because the crime in question did not involve dishonesty or false statements, exclusion under Fed. R. Evid. 609(a)(2) was appropriate and that it was unable to review the admissibility of the conviction under Fed. R. Evid. 609(a)(1) because the plaintiffs had not advanced the argument at trial.

The moral of the story? If you have multiple grounds for admissibility, you’d better include them all in your offer of proof.

Keywords: litigation, trial evidence, Federal Rules of Evidence, admissibility

—Amy Cashore Mariani, partner, Fitzhugh & Mariani, LLC, Boston, Massachusetts

September 12, 2011

The "Blade" Has Fallen on Snipes's Bid for a New Trial

On September 6, 2011, the Eleventh Circuit Court of Appeals rejected actor Wesley Snipes’s contention that the district court erred in failing to grant him a new trial on income-tax-evasion charges in spite of the fact that a juror contended after the trial had ended that certain jurors had made up their minds to convict before the trial even started. United States v. Snipes [PDF], 2011 WL 3890354 (11th Cir. 2011). The juror contacted Snipes’s attorneys only after the Eleventh Circuit had rejected his appeal on the merits. According to the Eleventh Circuit, the email forwarded to Snipes’s attorneys by the juror could not serve as the valid basis for a new trial because it was not admissible under Fed. R. Evid. 606(b). That rule provides:

Because the email in question fell outside of the enumerated exceptions in Fed. R. Evid. 606(b), the Eleventh Circuit concluded that the trial court appropriately denied Snipes’ new trial motion.

Keywords: litigation, trial evidence, Eleventh Circuit, Federal Rules of Evidence

—Amy Cashore Mariani, partner, Fitzhugh & Mariani, LLC, Boston, Massachusetts

June 29, 2011

Eleventh Circuit Examines Admission of Lay Testimony

On June 14, 2011, the Eleventh Circuit held that an attorney could provide lay testimony regarding fraudulent transactions based on his own personal knowledge pursuant to Rule 701. United States v. Graham, ___ F.3d ___ (11th Cir.2011).

At the trial for mortgage fraud, a real-estate attorney, Key, who had participated in some of the transactions purported to be the basis for the fraud was permitted to testify not only about the transactions themselves, but also about whether the transactions were fraudulent. Rejecting arguments that the testimony in question should have been excluded because it was expert testimony that did not meet Rule 702 criteria, the Eleventh Circuit stated:

Keywords: litigation, trial evidence, lay testimony, Eleventh Circuit

—Amy Cashore Mariani, partner, Fitzhugh & Mariani, LLC, Boston, Massachusetts

June 29, 2011

Learned Treatises Require Expert's Testimony

Do you need an expert’s testimony for the admission of learned treatises? In a case recently decided by the Eastern District of Virginia, the answer was yes.

In Hogge v. Stephens, 2011 WL 2161100 (E.D.Va 2011), the plaintiff attempted to submit portions of medical articles in opposition to the defendants’ motion for summary judgment. The court found that these documents were inadmissible hearsay, even though the information may have constituted learned treatises under Fed. R. Evid. 803(18), because they had not been authenticated by way of expert testimony. Thus, if you want to throw the book at the opposition, you’d better bring your expert.

Keywords: litigation, trial evidence, learned treatises, expert testimony

—Amy Cashore Mariani, partner, Fitzhugh & Mariani, LLC, Boston, Massachusetts

January 28, 2011

Court Must Resolve Daubert Challenge Before Addressing Class Certification

The plaintiffs alleged that some Honda motorcycles had a design defect such that they failed to damp a side-to-side shaking of the front steering assembly. The plaintiffs moved for class certification, relying on a report prepared by Mark Ezra, a motorcycle engineering expert. Ezra’s report opined that motorcycles should by their design and manufacture exhibit decay of any steering oscillations sufficiently and rapidly so that the rider neither reacts to nor is frightened by such oscillations.

Honda moved to strike the report under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), arguing that Ezra’s “wobble decay” standard was unreliable because it was not supported by empirical testing; was not developed through a recognized standard-setting procedure; was not generally accepted in the relevant scientific, technical, or professional community; and was not the product of independent research. Honda argued that even if the standard itself was reliable, Ezra did not reliably apply it to this case because he only tested one motorcycle and did not account for variables that could affect the wobble decay rate.

The court of appeals held that when an expert’s report or testimony is critical to class certification, a district court must conclusively rule on any challenge to the expert’s qualifications or submissions prior to ruling on a class certification motion. If the challenge is to an expert’s qualifications, the court must compare the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness’s testimony. The court must also resolve any challenge to the reliability of information provided by an expert if that information is relevant to establishing any of the Rule 23 requirements for class certification.

Keywords: litigation, trial evidence, Daubert, motorcycle, Honda

—Michael R. Lied, Howard and Howard Attorneys, PLLC, Peoria, Illinois

January 12, 2011

Tips from the Top: Organize for Efficiency, Professional Appearance

In cases involving documentary evidence, organization is crucial. When you are trying a case by yourself without assistants, it is even more crucial.

Very early in my career, I remember being in trial with a few hundred pages worth of exhibits behind me. I thought I had carefully laid down the documents in a manner that would provide me with easy access. However, they were also easy for my client to access, and the client wanted to look through the documents as well. Unfortunately, the documents became disorganized enough that there was either a delay of 15 to 30 seconds to find a document (an eternity in a courtroom) or I had to go without. The more often I had to look for documents in this manner, the more disorganized the documents got.

Now, whether the case involves fifty exhibits or a thousand, I have found ways to organize my documents in a manner that ensures that they are at my fingertips when I need them. Likewise, keeping case law that may be relevant to admissibility with your documents, if it is an issue, can pay dividends down the line. Having no delay in the use of your documents creates an organized and professional appearance for the jury and allows you to maintain control of the pace of witness examination.

December 21, 2010

Tips from the Top: Connect with Your Jury

When I was a young law student, I clerked for a summer at one of the federal district courts. It was a great experience and provided some early lessons that have helped me in the years that followed. At one trial before my judge, there was an experienced Ivy League graduate lawyer going up against a new graduate in his first trial. The experienced lawyer represented the plaintiff and had a good factual case. The newer lawyer had a lot of difficult facts to challenge and a client with a handlebar moustache. The newer lawyer won the jury.

I had many takeaways from that trial. First, good lawyering may not win you a case with bad facts, but bad lawyering can certainly lose you a case. The more experienced lawyer made several critical errors that cost his client the case.

During course of the case, it was clear that the experienced lawyer did not know how to properly phrase a question. When doing direct examination, it is important to let your witness tell the story to the jury. Leading your witness, aside from leading to objections, can lead the jury to the conclusion that the witness couldn’t answer those questions without your assistance. Also, with the constant objections, the witness’s testimony becomes disjointed and hard to follow. It also makes your incompetence more central than the witness’s testimony.

The experienced lawyer also did not know how to properly make an objection. He made an objection to almost every other question asked by opposing counsel. More than 90 percent of them were denied. While he did disrupt the flow of opposing counsel’s examination, he also infuriated the jury by wasting their time, something they may have held against his client in his ruling. This was a waste of their time because it was clear that the counsel did not understand evidentiary concepts such as hearsay and relevance, the difference between a leading and non-leading question, or that you can ask a leading question on cross-examination.

At the end of the trial, while giving closing arguments, the experienced lawyer pulled out his laptop, held it on his arm, and literally read his argument directly from his computer, never once even looking up past his screen. Not only was it one of the most boring closing arguments I can recall, it clearly had little impact on the jury. His failure to connect with them on any level was a lesson to be learned.

The Confrontation Clause under Crawford v. Washington and Its Progeny

The Supreme Court’s 2004 decision in Crawford v. Washington almost single handedly resurrected the Sixth Amendment’s Confrontation Clause, which provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” 541 U.S. 36 (2004). It overruled Ohio v. Roberts, which had been the leading Supreme Court decision on the application of the Confrontation Clause for almost a quarter of a century. 448 U.S. 56 (1980). Under Roberts, the Court had permitted the admission of out-of-court statements of a witness who was unavailable at trial if the statement bore adequate “indicia of reliability,” such as the existence of a firmly rooted hearsay exception or other particularized guarantees of trustworthiness. Crawford changed the analysis from whether the statement was reliable to whether the statement was “testimonial.” If testimonial, the statement is now admissible only if the Confrontation Clause is satisfied. Crawford marked the beginning of a new Confrontation Clause jurisprudence.

To read the full article, please see the Winter 2010 issue of Proof, the newsletter of the Trial Evidence Committee.

—James A. Nofi

Seven Tips on Utilizing Demonstrative Evidence at Trial

1. Demonstrative evidence should clearly or memorably convey a theme or concept.
2. Demonstrative evidence should focus attention, make evidence accessible, and breathe life into evidence that would otherwise be unacceptably dull and boring.
3. Technology allows you to replicate the grab-and-go pace that jurors operate in every day.
4. Anticipate problems and always have a back-up plan, such as an eyewitness who, using photos or drawings, can gain admission of the same evidence.
5. Make sure you have met your predicates for admissibility; the demonstrative aid must be relevant and the witness must testify that it will help him with his explanation to the jury.
6. Prepare in advance a response to any Rule 403 objection.
7. Use summary evidence to distill large quantities of information into usable material for the jury.

To read the full article, please see "Using Demonstrative Evidence to Win" in the Winter 2010 issue of Proof, the newsletter of the Trial Evidence Committee.

—Trey Cox

Tips from the Bench: Always Be Aware of Your Audience

Too often, I see lawyers who are so immersed in their tasks during trial that they completely forget that there is an audience. Of course, I don’t mean the people sitting in the gallery—I mean the jury. Lawyers do things every day in my courtroom that either exclude or ignore the very people they are trying so hard to persuade. Below are just a few ways that I have seen lawyers exclude jurors during trial.

Photographic exhibits. If finances prohibit you from enlarging a photograph, then request permission for the witness to step down and show the jury directly (and as close as the court will allow) what is being shown in the photograph. It is far too late to allow the jury to view photographs after a witness has left the stand, especially where the photographs are used to show locations. In the alternative, ask the witness to mark, legibly and visibly, on the exhibit to give the jury a way to make sense of their testimony. Better yet, make a copy for each juror to keep and to make their own markings that make sense to them. Let jurors have this exhibit during the testimony.

Witness clarity. Some witnesses are reluctant, some are shy, some speak very quickly, and some are just plain mumblers. In all events, it is the questioning lawyer’s responsibility to give the witness cues to make their testimony more understandable for the jury. Make certain that your witness waits for you to complete your question before answering, and make certain that you do not talk over a witness, except in extraordinary circumstances. You can slow down the pace of your questions, increase the volume of your own voice, or simply ask the witness to speak directly into a microphone or to slow down to make it clear to the jury that you are aware that they must be able to hear to understand. Failure to look at the jury during questioning will mean that you will not notice obvious cues if the jurors have difficulty in hearing your witness.

Forgetting that you are being watched. Jurors do not myopically watch only the witness on the stand. They often look at the judge, the gallery, your client sitting at counsel table, and especially you. You are “on” every single minute of every single day during a trial whether you realize that or not. Reacting by making facial expressions, laughing, smirking, and slouching are all important to the jury. I cannot tell you the number of times that jurors have brought to my attention that they were either distracted, annoyed, or insulted because they see these sorts of things going on during a trial. Make certain that your client understands this dynamic, and dedicate yourself to remaining professional at all times. This is not limited to the courtroom either. The way you conduct yourself in the hallways, cafeteria, and security lines will all be remembered by a juror when the time comes to make a decision about whether to accept your arguments.

Repeating information. Resist the temptation to repeat information. If you feel that you must emphasize a certain fact or exhibit, make certain that you do so in different ways. The complaint I hear most frequently from jurors is that lawyers ask the same questions several times over. This makes your audience feel as though you think they are not paying attention. It also causes boredom and inattention. Give the jurors credit—most of them are listening carefully. Respect their abilities and trust them to listen to testimony. So long as they are able to hear and see your witnesses and exhibits, repetition is not necessary.

Self-persuasion of jurors is far more effective and important than any amount of rhetoric that you might use. If jurors understand what your witnesses say and what your exhibits show, often they will persuade themselves regarding the validity of your position. Excluding them or making it difficult for them to understand does not help your case. Only people who feel comfortable about their decision will end up exercising their power. Please don’t forget the jury.

Judicial Conference Sends Changes to Fed. R. Civ. P. 26(a)(2) and Fed. R. Evid. 804(b)(3) to Supreme Court

The Judicial Conference has approved changes to Rule 26(a)(2) of the Rules of Civil Procedure and Rule 804 of the Rules of Evidence. These proposed changes will now be sent to the Supreme Court. 

Proposed Fed. R. Civ. P. 26(a)(2)(C) Would Impose New Obligations on Counsel Regarding "No-Report" Expert Witnesses

In June of 2009, the Standing Rules Committee approved proposed Fed. R. Civ. P. 26(a)(2). If accepted by the Judicial Conference and approved by the Supreme Court, this new rule would obligate counsel to provide detailed disclosure regarding testimony by experts not generally required to prepare reports pursuant to Rule 26(a)(2)(B). In recent years, some judges have required persons such as treating physicians and government investigators to provide expert reports under Rule 26(a)(2)(B) while others have not. If adopted, Rule 26(a)(2)(C) would require counsel to provide for all experts that do not meet the definition of “one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony” both the subject matter to which the expert witness is expected to testify as well as a summary of the facts and opinions to which the expert is likely to testify. The facts that must be recited need be only those that support the opinions. While many attorneys already provide this information in Rule 26(a)(2)(A) disclosures out of an abundance of caution, the proposed rule would crystallize counsel’s obligations regarding disclosure of “No-Report” expert testimony.

Proposed Changes to Fed. R. Evid. 804(b)(3) Make Corroboration a Two-Way Street

At its June 2009 meeting, the Standing Rules Committee adopted a proposed change to Fed. R. Evid. 804(b)(3) that would require both the government and criminal defendants to demonstrate corroborating circumstances as a predicate to admitting an unavailable declarant’s statement against penal interest. While some courts have already extended this requirement to the government, Rule 804(b)(3) imposes it only upon criminal defendants at this time. This amendment would not affect civil matters and has no effect upon statements against pecuniary interest. The proposed amendment is now before the Judicial Conference and, if accepted, will be forwarded to the Supreme Court for adoption later this calendar year.

Tips from the Bench: Advice for Trial Attorneys from Seasoned Trial Judges

Use trial time wisely. A prized asset for any trial court is trial time. This means that the effective use of trial time is essential for all involved and wise counsel will keep this key concept in mind at all times. Thoughtful preparation will help use time most effectively, including considering the order of witnesses and document presentation, flow and thoughtfully developing a story. Question selection and approach is equally important. Do you really need to ask the same question a half-dozen times before the jury “gets it”? When examining an expert about her report, do you really want to spend an hour asking her to paraphrase the report that is in evidence and can be read in a few minutes? And know when to say or ask nothing. Are you asking substantive questions in cross or redirect, or are you simply asking questions because you have the opportunity to do so? Remember, the best way to dismiss or minimize statements made may be to ask nothing in cross or redirect. All involved—including the jury and the court—will appreciate the efficient, effective use of trial time.

Listen. Listen very, very carefully to what a witness says, to what opposing counsel asks and says and to statements by the court. Also listen to what isn’t said. Remember, silence can be far louder than the spoken word. Keep witnesses and opposing counsel true to the record and the facts and correct the record when necessary. Press for answers when evasive or non-responsive answers are given to important questions. Avoiding or evading hard questions may tell the jury that there is no real answer, that there is no good answer or that a witness doesn’t want to answer the question. Each of these alternatives will be helpful (or harmful), depending upon who you represent.

Know the Rules of Evidence. Lawyers and judges spend decades learning and trying to master the rules of evidence, admittedly with imperfect results. That said, a working knowledge of the rules of evidence generally (and anticipating specific, novel evidentiary issues) is essential at trial. Wise counsel will use judgment in deciding what evidence to oppose and when otherwise-objectionable evidence should be admitted. Wise counsel also will consider whether to raise objections outside of the presence of the jury. Even successfully objecting to evidence that leaves a jury wanting to hear the evidence may seriously (or fatally) undercut your case. Simply put, knowing when and how to object, and the grounds for objection, is essential.

The views expressed are those of the author and do not represent those of the Arizona Superior Court.

—Samuel A. Thumma, Judge, Arizona Superior Court, Maricopa County, Phoenix, Arizona

New Rule 502 of the Federal Rules of Evidence Becomes Law

On September 19, 2008 President Bush signed into law S. 2450, which provides a new Rule 502 of the Federal Rules of Evidence. The signed bill is now Public Law 110-322. The House had passed S. 2450 by voice vote on September 8, 2008 and the Senate had unanimously passed S. 2450 on February 27, 2008. Rule 502 addresses the issue of waiver of attorney-client privilege by creating a presumption for the return of inadvertently produced documents. The ABA had previously expressed its strong support for the addition of Rule 502 and had urged members of Congress to promptly pass S. 2450.

Rule 502 Passed by Congress; Awaiting Signature by President Bush

On September 8, 2008 the House of Representatives passed by voice vote S. 2450, which provides a new Rule 502 of the Federal Rules of Evidence. The Senate had unanimously passed S. 2450 on February 27, 2008. Rule 502 addresses the issue of waiver of attorney-client privilege by creating a presumption for the return of inadvertently produced documents. The ABA had previously expressed its strong support for the addition of Rule 502 and had urged members of Congress to promptly pass S. 2450.

According to the Senate Judiciary Committee Report recommending passage of S. 2450, new Rule 502 provides "a predictable and consistent standard to govern the waiver of privileged information. It improves the efficiency of the discovery process while preserving accountability. Furthermore, it does not alter federal or state law on whether information is protected by the attorney-client privilege or work product doctrine in the first instance, but merely modifies the consequences of inadvertent disclosure once a privilege is found to exist." The Report further states that new Rule 502 limits "the consequences of inadvertent disclosure, thereby relieving litigants of the burden that a single mistake during the discovery process can cost them the protection of a privilege. It provides that if there is a waiver of privilege, it applies only to the specific information disclosed and not the broader subject matter unless the holder has intentionally used the privileged information in a misleading fashion. An inadvertent disclosure of privileged information does not constitute a waiver as long as the holder took reasonable steps to prevent disclosure and acted promptly to retrieve the mistakenly disclosed information.” Speaking on the floor of the Senate Senator Patrick Leahy (D-Vt.), the bill's co-sponsor, said, “[t]he new rule would provide predictability and uniformity in a discovery process that has been made increasingly difficult with the growing use of e-mail and other electronic media.”

The legislation is now being forwarded to President Bush for his review and signature. Once finally enacted into law, S. 2450 will apply to all cases filed after the date of its enactment and, insofar as just and practicable, to all cases pending on the date of its enactment.

Tips from the Top: Think Before You Plead

I’ve been involved recently in a case in which several plaintiffs allege lost income, but want to rely solely on their testimony to establish their income before and after the events in question. There are two claims involved in this case – one statutory that requires no evidence of damages, and one tort claim that does. The plaintiffs refused to produce tax returns or even W-2s, and pled the Fifth at their depositions when asked about the preparation and contents of their tax returns.

I moved to preclude them from presenting evidence of economic losses. The judge has now ordered them to produce their tax returns and answer questions about them at deposition or they will be barred from introducing damages evidence at trial. The judge has also informed counsel that any plaintiff who testifies at trial about income exceeding that which is reported on tax returns will be reported to the IRS and the Department of Justice. Some plaintiffs have produced their returns and testified about them, revealing a longstanding pattern and practice of deliberately and willfully underreporting, while others have decided to forego those claims.

The moral of this story? Think about what evidence you need at trial before you determine what claims you assert on behalf of your clients. Failure to do so can even land your clients in jail.

Tips from the Top: Silence May Not Be Golden

I was scheduled to take an employment discrimination case to trial right after Labor Day. The week before, we learned that the human resources representative involved in handling the situation which gave rise to the lawsuit was out on medical leave of absence, and would not be able to testify because of her underlying medical condition. She had been deposed by the plaintiff, but we had asked her no questions at the deposition. Needless to say, her deposition testimony did not read well for purposes of a direct examination at trial. We were lucky – opposing counsel agreed to a motion to continue the trial, and the judge granted it, but it made me question whether my usual and customary practice of asking my own key witnesses no questions at depositions conducted by plaintiff’s counsel is a good one. Had the judge not continued the case, I would have been forced to introduce testimony that did not read well stylistically from a witness critical to my case. While this situation certainly was unusual, I may consider asking a similarly situated witness a few concise questions at deposition for purposes of making sure that I have testimony that reads the way I want it to at trial in the event that the witness is not available due to death, illness, or other factors outside of my control.

Tips from the Top: Trust Your Instincts

A friend of mine shared with me a recent trial experience that imparts a valuable lesson. He has tried hundreds of cases over the past twenty years, accumulating a remarkable track record in the process and honing his trial instincts to a fine point.

While representing a major corporation recently, he tried a case in which he intended to call a mid-level manager of minimal importance to the facts of the case to testify. He knew she was a good witness and he wanted to have all testimony from everyone who had any involvement with the transaction at issue in the litigation appear before the jury. That way, the jury would know the corporation had nothing to hide. The jury knew of her existence through documents and testimony of other witnesses. But the client objected to bringing her in to testify, saying it would be an unnecessary expense because she was located out of state.

Against his better judgment, my friend deferred to his client’s recommendation. Four hours into their deliberations, the jury requested that they be provided with a copy of this employee’s deposition testimony! A day later, they returned a verdict against his client. Though he does not know the exact impact that her testimony would have made, my friend remains convinced that he should have trusted his instincts and called the employee in spite of his client’s reluctance to do so.

Tips from the Top: The Right Hand and the Left Hand

Several years ago, I represented a major retailer in a case brought against it by a customer who claimed he had been injured in one of their stores. My client and I suspected that the plaintiff was malingering and/or exaggerating the degree of his disability. Unbeknownst to me, my client engaged a private investigator to conduct surveillance of the plaintiff. The investigator obtained some wonderful video footage of this man playing pool and doing other things that showed he was much more physically capable than he claimed to be. This footage looked like it was going to make the case – until I learned that the investigator was the other pool player and had encouraged the plaintiff to play pool! This one piece of information turned a valuable piece of evidence into dross. We had to disclose its existence to the other side, but could not use it at trial because of the investigator's wrongdoing. The moral of the story? Make sure that the right hand knows what the left is doing – if your client is at all inclined to utilize the services of a private investigator, make sure that the client manages the investigator.

Tips from the Bench: Advice for Trial Attorneys from Seasoned Trial Judges

Tell a story. How do you keep a jury’s attention, especially when the case you are trying is complex or simply not an interesting one? My advice is to keep it simple. Although bells and whistles can enliven a courtroom, too many distractions can lead to jury confusion and/or impatience. Don’t waste a jury’s time with demonstratives (generally electronic) that can’t be displayed reliably or that relate to unimportant details. Juries want to understand and follow the case, so organize the presentation of your evidence in some recognizable fashion, e.g., chronologically or by issue. While it may be challenging, it should be satisfying (if not downright enjoyable) for a trial lawyer to break her case down to “evidentiary bits” and then refashion them into a coherent story for the courtroom.

Make a record. Lawyers need to remember that they actually have multiple audiences in a trial. Not only do lawyers have a jury in the courtroom, lawyers also have the trial and appellate judges who will review the trial record after the jury has returned its verdict. What a lawyer does in the courtroom doesn’t necessarily translate into a compelling record on post trial review. Perhaps the most common mistake in this regard is the failure of lawyers to correlate their examination of witness with the exhibits being shown to the witnesses. A jury generally can follow such an examination, because the jurors can physically see what exhibit is being displayed for each question. Unlike the jury, a judge reading the trial transcript has to rely on what was said. If a lawyer fails to clearly associate his questions with the exhibit(s) to which the questions relate, there is a substantial risk that the evidence, even if of record, will not be associated with the proper issue and, therefore, will be found deficient.

It’s about the evidence. Trials have often been described as “courtroom dramas” and many lawyers act as though they are the stars of the show. In my world, however, a lawyer’s worst enemy is his ego. A lawyer who demeans opposing counsel or attacks opposing witnesses loses credibility with the jury; a lawyer without credibility can rarely hope to have his evidence viewed as credible.Lawyers need to remind themselves that they are asking a lot from jurors - their time, their attention, their impartial consideration of the record and, ultimately, a favorable verdict. Respect for the process should translate into at least a modicum of humility for the role that lawyers actually play—presenting and explaining evidence. In short, the case is not about the lawyer, the case is about the evidence. The less emphasis you put on evidence that supports your position, the more suspicious a jury will be that, in fact, you have no such evidence.

Rule 502 Passes Senate; Awaiting Vote in House

On February 27, 2008 the Senate unanimously passed S. 2450 which includes new Rule 502 of the Federal Rules of Evidence. Rule 502 addresses the issue of waiver of attorney-client privilege by creating a presumption for the return of inadvertently produced documents. The ABA has previously expressed its support for the addition of Rule 502. Speaking on the floor of the Senate Senator Patrick Leahy (D-Vt.), the bills co-sponsor, said, “[t]he new rule would provide predictability and uniformity in a discovery process that has been made increasingly difficult with the growing use of e-mail and other electronic media.” The legislation has now been referred to the House Judiciary Committee for consideration leading up to a full vote of the House of Representatives.

Smith v. Goodyear Tire & Rubber Co., ___ F. 3d ___ 2007 WL 22007000 (5th Cir. Aug. 2, 2007)

In this products liability action, the Court of Appeals for the Fifth Circuit upheld the District Court for the Southern District of Mississippi’s decision to exclude a polymer scientist from opining as to the cause of a tire tread separation. A rear tire on Plaintiff Smith’s pickup truck burst, causing a serious traffic collision. Smith sued Goodyear and others alleging that the defective design and/or manufacture of the tire caused its tread to separate.

Smith retained Dr. Robert B. Moore, a polymer scientist, who concluded that the tire tread separated because of “improper bonding of the rubber skim layer to the steel belts.” Dr. Moore additionally opined that the separation could have been prevented if a “nylon cap overlay” had been incorporated into the tire’s design.

Despite the fact that Dr. Moore had never worked in or studied the tire industry, had not published any articles regarding tires, nor claimed to be a tire expert or ever testified as one, Smith maintained that Moore’s opinions were simply applications of the fundamental issues of polymer science. In affirming the trial court’s rejection of Moore’s causation opinion, the Circuit Court reasoned that Smith’s argument was “true in some sense, just as it is true that asbestos, heart valves, and cupcakes can all be broken down into their basic atomic particles; but that does not mean an atomic physicist is qualified to testify regarding asbestosis, medical malpractice, or confectionary issues.” Ultimately, according to the Court, it is the science’s application to the subject matter that is paramount, and Smith’s proffered expert had no experience applying principles of polymer science to tires.

State v. Dickens, 175 Md. App. 231 (July 2, 2007)

In this criminal appeal to the Court of Special Appeals of Maryland (Maryland’s intermediate appellate court), the Court rejected Defendant’s argument that several text messages sent to the victim’s mobile telephone before her murder were not properly authenticated. Defendant John Dickens acknowledged shooting and killing his estranged wife, but claimed the act was not premeditated. The State introduced five threatening text messages sent to the victim’s cell phone to establish otherwise.

The Court ruled the State properly authenticated the text messages under Maryland Rule of Evidence 5-901 (derived from F.R.E. 901)—specifically its provisions for authentication by the testimony of a witness with knowledge, (Md. Rule 5-901((b)(1)), and by circumstantial evidence, (Md. Rule 5-901(b)(4)). For example, the victim’s mother testified that the cell number from which one of the messages was sent was the number of a cell phone that belonged to the victim, but which the victim gave to the Defendant, and was possessed by him during the time period the text was sent. The Court also observed that the substance of other text messages, which included a reference to visitation with the parties’ minor child, and a reference to the parties’ wedding vows was sufficient circumstantial evidence to permit the jury to conclude that the Defendant authored the texts.

Heron Interact, Inc. v. Guidelines, Inc., __F.R.D.__, 2007 WL 1991401 (D. Mass. July 2, 2007)

In this discovery dispute, Chief Magistrate Judge Neiman, in the United States District Court for Massachusetts, ordered the production of documents based upon application of Rule 612 of the Federal Rules of Evidence.

Chaco, Heron Interact, Inc.’s principal was designated as a Fed.R.Civ.P. 30(b)(6) witness. In preparation for his deposition, Chaco gathered, created and utilized documents and information to refresh his understanding of events and to prepare his testimony. Heron Interact, Inc. claimed that the documents used by Chaco were subject to the attorney-client privilege and the attorney work product doctrine. Guidelines moved to compel the production of the documents relied upon by Chaco in preparation of and used by him at the deposition. Heron Interact, Inc. filed a cross-motion to strike.

Magistrate Judge Neiman determined that Rule 612 of the Federal Rules of Evidence applies to deposition testimony by operation of Fed.R.Civ.P. 30(c). In applicable part, the rule provides that if a witness uses a writing to refresh memory for the purpose of testifying, either: (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. Based upon Chaco’s deposition testimony and affidavit filed in opposition to Guidelines, Inc.’s motion nine documents were clearly used by him to refresh his memory when preparing for the deposition. In the court’s opinion, all nine of the documents fell within the “writing[s]” referred to in Rule 612. Since the documents were gathered, created and utilized by Chaco in preparing his testimony, the attorney work product doctrine did not apply. In addition, the attorney-client privilege did not apply because, in part, the documents were used by Chaco to refresh recollection in connection with testimony at deposition.

Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046 (8th Cir. 2007)

The plaintiff brought suit alleging that defendant discriminated against him on the basis of his Arabic race after the September 11, 2001, terror attacks. Plaintiff’s employment began in the summer of 2001 and ended in March 2002. In April 2002, two FBI agents came to plaintiff’s home, questioned him about whether he was engaged in making bombs, and searched his house. According to plaintiff, one of the agents told him that someone from defendant’s office had called the FBI to report that plaintiff was making bombs. When plaintiff filed suit in October 2002, he attempted to obtain the FBI informant’s identity to show defendant’s racial animus against Arabs. His attempts included: (1) a letter requesting that the FBI send him the records of his investigation; (2) a subpoena demanding the records and the FBI agent’s testimony; (3) a motion to compel production; and (4) an administrative appeal. When all proved unsuccessful, plaintiff served a 30(b)(6) subpoena for the files, specifically demanding to learn the identity of the informant and whether he or she was employed by defendant. The FBI objected, citing the common law confidential informant privilege and Department of Justice regulations. The magistrate judge reviewed the unredacted files in camera and denied plaintiff’s second motion to compel, holding that the FBI did not abuse its discretion in refusing to disclose the material on the basis of the confidential informant privilege where the files showed that the informant had been assured confidentiality and plaintiff’s need for the informant’s identity was speculative. Finally reaching plaintiff’s substantive claims, the district court granted summary judgment to defendant on all counts. The court rejected plaintiff’s argument that discrimination could be based on his evidence that an employee of defendant’s provided a false tip about him to the FBI, finding that all of plaintiff’s attempts to obtain the identity of the informant had been unsuccessful, and that his only evidence was what he was allegedly told by the FBI agent, which was inadmissible hearsay. On appeal, plaintiff argued that the FBI agent’s statement should have been admitted through exceptions to the hearsay rule in Federal Rules of Evidence 804(b)(3) and 807. The court held that the FBI agent was not “unavailable” as required for the Rule 804(b)(3) statement against interest exception, because plaintiff had not made a good faith attempt to locate and subpoena the witness. Plaintiff’s lone subpoena had been returned undelivered and he had made no other efforts to locate the FBI agent apart from his motion to compel the FBI to disclose his location. The court also found that plaintiff had not shown the FBI agent’s statement had the circumstantial guarantees of trustworthiness as required for the Rule 807 residual exception. Thus, the Eighth Circuit affirmed the lower court in full.

Owen v. General Motors Corp., No. 06-4067, 2007 WL 1101194 (W.D. Mo. April 12, 2007)

This putative class action arose out of a windshield wiper malfunction on plaintiffs’ 1999 Chevrolet Tahoe, which was manufactured by defendant General Motors (GM). In 1997, several years prior to the filing of the suit, the National Highway Traffic Safety Administration (NHTSA) had investigated reports of wiper failure in seven 1995 GM vehicles. GM had also performed its own investigation and, in the course of doing so, retained Dr. Michael Pecht to determine the cause of the wiper failure. Dr. Pecht’s contract entailed planning for GM’s case with the NHTSA and called for any documents GM considered confidential to be marked as such. Dr. Pecht and CALSE, his consulting group, were paid in part by GM and in part by the wiper manufacturer. After the consulting work ended in 1999, Dr. Pecht did not perform additional work for GM. When the present lawsuit was filed, GM unsuccessfully attempted to contact him about his possible retention as an expert. Plaintiffs subsequently named Dr. Pecht as an expert witness. The district court denied GM’s motion to disqualify Dr. Pecht, finding GM’s argument that it expected the information disclosed to Dr. Pecht to remain confidential lacking in credibility due to: (1) GM’s failure to mark documents given to Dr. Pecht as confidential and (2) GM’s failure to require all members of the task force to execute a confidentiality agreement. Also factoring into the court’s decision were public policy considerations as well as the fact that Dr. Pecht would be subject to cross examination, thus revealing any bias he might have for or against GM.

Ahlberg v. Chrysler Corp., 481 F.3d 630 (8th Cir. 2007)

A decedent’s estate brought suit alleging negligence, fraudulent concealment, strict products liability, and emotional distress against Chrysler Corporation. The claims arose when the decedent was killed while attempting to stop a 1999 Dodge Ram truck from rolling down a driveway. The decedent’s grandson had been left alone in the cab and had shifted the truck from park into neutral or reverse. The core of the estate’s claim was that Chrysler did not equip the truck with a brake-shift interlock device, which requires the user of a vehicle to depress the brake pedal before shifting out of park. After the jury returned a verdict for Chrysler on all counts, the estate appealed, challenging several evidentiary rulings made by the trial court. Among other things, the estate argued that the trial court’s exclusion of fact witness testimony on hearsay grounds was improper because the statements should have been admitted under the rule of completeness. The witness would have testified that during a 1994 meeting, members of a Chrysler minivan safety-leadership team stated that vehicles manufactured without brake-shift interlock devices were unreasonably dangerous and that Chrysler vehicles should have been equipped with brake-shift interlock devices. The Eighth Circuit disagreed with the estate, holding that the rule of completeness applies to writings or recorded statements, not to conversations. Furthermore, the court noted that whilethe rule of completeness allows only the settingof contextand clarification ofanswers given on cross-examination, the estate was instead attempting to admit hearsay statements consistent with its fact witness’s own statements. Finding no abuse of discretion, the Eighth Circuit affirmed.

Lorraine v. Markel, 241 F.R.D. 534 (D. Md. 2007)

The Lorraines’ brought action in the District Court of Maryland to enforce a private arbitrator’s award finding that certain damages to their yacht, Chessie, was caused by a lightning strike that occurred on May 17, 2004, while the yacht was anchored in the Chesapeake Bay. Markel American Insurance Company counterclaimed to enforce the arbitrator’s award, which, in addition to concluding that certain damages to Chessie’s hull was caused by lightning, also concluded that the damage incurred was limited to an amount of $14,100, plus incidental costs. Following discovery, the parties filed cross-motions for summary judgment wherein the parties sought to confirm and enforce the arbitrator’s decision. The Chief Magistrate Judge denied both parties without prejudice because the parties had not complied with various federal rules of evidence.

The Court concluded that the parties collectively failed to consider the implications and the applicability of the federal rules of evidence with respect to the submission of electronically stored information (ESI) in support of their cross-motions for summary judgment. The Court determined that the federal rules of evidence apply to ESI for purposes of trial as well as for purposes of motions for summary judgment.

Whether ESI is admissible into evidence is determined by a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of the evidence. Failure to clear any of these evidentiary hurdles means that the evidence will not be admissible. Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401; (2) if relevant under Rule 401, is it authentic as required by Rule 901(a); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception under Rules 803, 804 and 807; (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, or if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001-1008); and (5) is the probative value of ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance. These are the five distinct but interrelated evidentiary issues espoused by the Court.

Preliminarily, the process by which the admissibility of ESI is determined is governed by Rule 104, which addresses the relationship between the judge and the jury with regard to preliminary fact finding associated with the admissibility of evidence. Because Rule 104 governs the process of determining admissibility of ESI, it must be considered first. There is a significant difference between the way that Rule 104(a) and 104(b) operate. When the judge makes a preliminary determination regarding the admissibility of evidence under Rule 104(a), the Federal Rules of Evidence, except for privilege, do not apply. Typically under Rule 104(a), the judge determines whether an expert is qualified, and if so, whether his or her opinions are admissible; the existence of a privilege; and whether evidence is hearsay, and if so, if any recognized exception applies. Under Rule 104(b), the jury, not the court, makes the factual findings that determine admissibility, the facts introduced must be admissible under the rules of evidence.

The first evidentiary hurdle to overcome in establishing the admissibility of ESI is to demonstrate that it is relevant, as defined by Federal Rule of Evidence 401. The proponent of the evidence should consider all potential purposes for which it is offered, and to be prepared to articulate them to the court if the evidence is challenged. It is also important to remember that there is a distinction between the admissibility of evidence, and the weight to which it is entitled in the eyes of the fact finder. Establishing that ESI has some relevancy generally is not difficult. Counsel should be careful to articulate the multiple grounds of relevance so that evidence that might otherwise be admitted may not be excluded because “the proponent put all his or her eggs in a single evidentiary basket”, which the trial judge views as inapplicable. Once the proponent of ESI establishes its relevance and concomitant presumptive admissibility, the next step is to demonstrate that evidence is authentic.

In order for ESI to be admissible, it also must be shown to be authentic under Rule 901(a). A party seeking to admit an exhibit need only make a prima facie showing that it is what he or she claims it to be. The inability to get evidence admitted because of a failure to authenticate it almost always is a self-inflicted injury, which can be avoided by thoughtful advance preparation. Courts increasingly are demanding that proponents of evidence obtained from electronically stored information pay more attention to the foundational requirements than has been customary for introducing evidence not produced from electronic sources. The authentication requirements of Rule 901 are designed to set up a threshold preliminary standard to test the reliability of evidence, subject to later review by an opponent’s cross-examination. Factors that should be considered in evaluating the reliability of computer-based evidence include the error rate in data inputting, and the security of the systems. The degree of foundation required to authenticate computer based evidence depends on the quality and completeness of the data input, the complexity of the computer processing, the routineness of the computer operation, and the ability to test and verify the results of the computer processing. Determining what degree of foundation is appropriate in any given case is in the judgment of the court. The required foundation will vary not only with the particular circumstances but also with the individual judge.

Consideration should also be given to the ten methods identified in Rule 901(b). Although this rule addresses the requirements to authenticate electronically generated or electronically stored evidence, it is silent regarding how to do so. Rule 901(b), however; provides examples, that are non-exhaustive, of how authentication may be accomplished. The Court outlines appropriate ways to seek authentication of various electronic media such as email, Internet website postings, text messages and chat room content. The mere attachment of exhibits to motions could prove fatal if one does not provide the court with authenticating facts. Similarly, counsel should be prepared to proffer authenticating facts at the time of trial. Although courts have been lenient in applying the authenticating rules, there is a growing awareness that courts should seriously consider the accuracy and reliability of computerized evidence.

The fourth hurdle, so to speak, that must be overcome when introducing ESI is the potential application of the hearsay rule. Hearsay issues are pervasive when electronically stored and generated evidence is introduced. When analyzing the admissibility of ESI for hearsay issues, counsel should address each step of the inquiry in order: does the evidence contain a statement, made by a person, which is offered for its substantive truth, but which does not fall into the two categories of statements identified in 801(d)(1) and 801(d)(2). If, as a result of this analysis, a determination is made that the evidence is hearsay, then it is inadmissible unless it is covered by one of the exceptions found in Rules 803, 804 and 807.

If ESI has cleared the first three hurdles being shown to be relevant, authentic, and admissible under the hearsay rule or an exception thereto, it must also be admissible under the original writing rule (Rules 1001 – 1008) before it can be admitted into evidence or considered at summary judgment. When counsel intend to offer electronic evidence at trial or in support of a motion for summary judgment they must determine whether the original writing rule is applicable, and if so, they must be prepared to introduce an original, a duplicate original, or be able to demonstrate that one of the permitted forms of secondary evidence is admissible. The final evidentiary issue that must be considered in determining whether electronic evidence will be admitted is whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, as proscribed under Rule 403 of the federal rules of evidence.

The Court’s opinion provides a comprehensive guide that will hopefully assist counsel in avoiding evidentiary pitfalls that could prove fatal to his or her case.

Hicks v. Charles Pfizer & Co., 466 F. Supp. 2d 799 (E.D. Tex. 2005)

In a personal injury action against the manufacturers of a polio vaccine, alleged to be the cause of the plaintiff’s brain tumors, the defendants moved for summary judgment on the grounds that the plaintiff could not establish that the defendants’ products had caused her injury. Plaintiff offered four newspaper articles from 1962 as evidence to link the defendants to the particular doses of the vaccine she was given as a child during a public health campaign to vaccinate the public against polio. In response to defendants’ argument that the relevant statements from these articles consisted of double hearsay, the plaintiff sought application of two exceptions to the hearsay rule to render the articles admissible—the “ancient documents exception” and the “residual exception.”

In order to give effect to Rule 805, which requires each level of hearsay to conform to an exception to the hearsay rule in order to be admissible, the ancient documents exception found in Rule 803(16) would only permit statements that were made by the author of the articles and could not excuse the double hearsay problem. The plaintiff’s alternate theory for admissibility rested on Rule 807, the residual hearsay exception, which provides that if a statement is not specifically covered by Rule 803 or 804 it may still be admissible if the court finds that it satisfies the prerequisites of (1) trustworthiness, (2) notice, (3) necessity, and (4) materiality, and the court determines that the purposes of the rules and justice will be served by admission of the evidence. With regard to trustworthiness, the court noted that the statements significantly predated the present controversy, any inaccuracies would have likely been identified at the time they were made, multiple publications by different sources corroborated their credibility, and the contemporaneous timing of the writings and the occurrence of the events in question also established their reliability. The court similarly reviewed each of the other requirements and found that the statements satisfied Rule 807 and the articles were therefore admissible. Because the articles were sufficient to raise a material issue of fact with regard to the identity of the manufacturer responsible for the vaccine ingested by the plaintiff, the defendants’ motion for summary judgment was denied.

Committee Forwards Proposed New Evidence Rule 502 to Judicial Conference

Consistent with our goal to identify and report on emerging issues relating to the rules of evidence, we update our previous report on the status of proposed new Federal Rule of Evidence 502 regarding the attorney-client privilege. At its June 11-12, 2007 meeting, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States approved the recommendations of the Advisory Committee on Evidence Rules and approved proposed new Evidence Rule 502. The Committee also approved a letter to Congress accompanying proposed new Evidence Rule 502 and a report to Congress on creating a harm-to-child exception to marital privileges.

The Committee will transmit proposed new Evidence Rule 502 to the Judicial Conference with a recommendation it be approved and transmitted to the United States Supreme Court. The language of proposed new Evidence Rule 502 will be available shortly and will be posted online.

ABA Adopts Standards for DNA Evidence

At the 2006 ABA Annual Meeting in Honolulu, Hawaii, the ABA House of Delegates adopted a new set of Criminal Justice Standards on DNA Evidence. The Standards establish standardized procedures for collection, retention, and access to DNA evidence in criminal cases. In the Spring 2007 issue of Proof, the Trial Evidence Committee’s newsletter, Ky Fullerton explores these standards.