Trial

October 9, 2009

Computer-Generated Business Records

How do you get computer-generated business records admitted into evidence? The same way you get other business records admitted into evidence, according to the Ninth Circuit Court of Appeals.

In U-Haul Intern., Inc. v. Lumbermens Mut. Cas. Co., _ F.3d _ (9th Cir. Aug. 12, 2009) (No. 07-16187) affirmed a district court’s decision to admit the computer-generated business records into evidence to show payment of indemnity claims and loss adjustment expenses. The appellate opinion reminds us of the four basic steps to admit business records into evidence under FRE 803(6):

As the district court found (1) the underlying data was entered into the database at or near the time of each payment event; (2) the persons who entered the data had knowledge of the payment event; (3) the data was kept in the course of Republic Western’s regularly conducted business activity; and (4) [claims manager] Mr. Matush was qualified and testified as to this information.

October 1, 2009

Juror Research on Google Results in New Trial

by The Law Offices of John Day, P.C.

A post from the Mass Tort Defense blog highlights a real problem: jurors conducting independent research during trials. Indeed, in the case featured in the post, the juror conducted the research before the trial (after he received his summons to serve as a juror) but shared what he knew during deliberations. The result? A reversal of a defense verdict.

The blog post does a nice job summarizing Russo v. Takata Corp., 2009 WL 2963065 (S.D. 9/16/09). You can read the entire opinion here.

Here is an excerpt from Sean Wajert’s summary:

September 29, 2009

Tennessee Supreme Court Issues Proposed Rules for Public Comment

by The Law Offices of John Day, P.C.

The Tennessee Supreme Court has asked for public comment on proposed changes to the rules of procedure and evidence. The Order asking for public comment can be viewed here.

I serve on the Court’s Advisory Commission on the Rules of Practice and Procedure and I am happy to report that the Court has accepted (at least for purposes of public comment) each of the rule changes proposed by the Commission.

Significant proposed changes to the rules of civil procedure include changes to clarify Rule 3 and 4 concerning the need to serve a summons and complaint promptly after filing of the complaint and issuance of the summons, Rule 5 concerning the electronic service of pleadings, motions and other documents, and Rule 26 concerning the discovery of insurance policy limits. The most significant change to the rules of evidence is new Rule 502 concerning the inadvertent waiver of the privilege.

July 23, 2009

Laying A Foundation to Admit a Photograph into Evidence

by The Law Offices of John Day, P.C.

The trial of virtually every personal injury or wrongful death case involves the use of one or more photographs.

The recent decision in Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, __ F.3d __ (2d Cir. July 6, 2009) (No. 08-0639-CV) reminds us that the failure to lay a proper foundation will result in exclusion of photographs at trial. The opinion reminds us that the "standard for admissibility of photographs requires the witness to recognize and identify the object depicted and testify that the photograph is a fair representation of what it purports to portray." The witness attempting to authenticate the photographs identified the object but was not asked whether the photograph was a fair and accurate representation of the object. The exclusion of the photograph was affirmed on appeal.

Recall that "[t]he witness qualifying a photograph … does not need to be the photographer or see the picture taken. It is only necessary that he recognize and identify the object depicted and testify that the photograph fairly and correctly represents it.” Kleveland v. United States, 345 F.2d 134, 137 (2d Cir. 1965)

July 10, 2009

Motion to Compel Defense Counsel to Wear Shoes Without Holes in the Soles

by The Law Offices of John Day, P.C.

You read the title correctly. Apparently Bill Bone in Florida believes that his adversary "wears shoes with holes in the soles when he is in trial." He believed that defense counsel did so "as a ruse to impress the jury and make them believe that [his adversary] is humble and simple without sophistication."

Relief sought? The Court was asked to require defense counsel without holes in the soles of his shoes at trial.

Download file

July 6, 2009

Georgia Supreme Court Reverses Med Mal Verdict Because of Error in Jury Instructions

by The Law Offices of John Day, P.C.

Georgia has a pattern jury instruction called the "hindsight" instruction. It provides as follows:

In a medical malpractice action, a defendant cannot be found negligent on the basis of an assessment of a patient’s condition that only later, in hindsight, proves to be incorrect as long as the initial assessment was made in accordance with reasonable standards of medical care. In other words, the concept of negligence does not include hindsight. Negligence consists of not foreseeing and guarding against that which is probable and likely to happen, not against that which is only remotely and slightly possible.

In Smith v. Finch , S08G1845 (Ga. June 29, 2009) the Georgia Supreme Court reversed a jury verdict for the defense and held that this instruction should not have been given. The court said as follows:

June 30, 2009

Closing Argument Requires Reversal

by The Law Offices of John Day, P.C.

The United States Court of Appeals for the Tenth Circuit has reversed a $2.4 million jury verdict for the plaintiff because of misconduct by plaintiff’s counsel during closing argument.

In the words of the Court: "We are compelled to reverse and remand for a new trial because of pervasive and improper remarks by Mr. Whittenburg’s counsel in closing argument to the jury. Counsel spent the bulk of his argument placing before the jury fictitious admissions never uttered by defendants and launching vituperative and unprovoked attacks on defendants and their counsel."

The offending argument, an imaginary letter that the defendant sent to the plaintiff’s children, is fully set forth in the opinion.

June 23, 2009

Luvera on Direct Examination

by The Law Offices of John Day, P.C.

Paul Luvera does it again, this time with a nice post on conducting direct examinations on his blog. Plaintiff Trial Lawyer Tips

An excerpt:

Evidence is like an iceberg. The bottom below the surface may be enormous, but only the tip is can be seen above the water line. That’s how your examination should be framed. Only a small amount of the facts are really significant or persuasive. Concentrate on that twenty percent this is significant and ignore all the rest. Focus your case. Identify the issues that count. Stick with those issues. ignore the rest that is not highly relevant. Use a rifle not a shot gun approach in your examination of witnesses.

March 27, 2009

Standard for Recusal of Judge

by The Law Offices of John Day, P.C.

What is the standard to be applied when a judge faces a recusal motion? The Tennessee Supreme Court answered that question yesterday in Bean v. Bailey, No. E2007-02540-SC-S10-CV (Tenn. Mar. 26, 2009).

Here is the standard:

a recusal motion should be granted when “the judge has any doubt as to his or her ability to preside impartially in the case” or “‘when a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.’” Davis, 38 S.W.3d at 564-65 (quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994)). Even if a judge believes he can be fair and impartial, the judge should disqualify himself when “‘the judge’s impartiality might be reasonably questioned’” because “the appearance of bias is as injurious to the integrity of the judicial system as actual bias.” Id. (quoting Tenn. Sup. Ct. R. 10, Canon 3(E)(1)).

March 23, 2009

Neuro Linguistic Programming

by The Law Offices of John Day, P.C.

Paul Luvera has written an interesting post on neuro linguistic programming. Those of you who have studied concepts such as mirroring and anchoring have explored some of the concepts that make up this field as applied to our craft.

The Oxford English Dictionary defines NLP as "a model of interpersonal communication chiefly concerned with the relationship between successful patterns of behaviour and the subjective experiences (esp. patterns of thought) underlying them" and "a system of alternative therapy based on this which seeks to educate people in self-awareness and effective communication, and to change their patterns of mental and emotional behaviour."

I was introduced to this subject ten or more years ago by Eric Oliver, a trial consultant from Michigan. Eric is scary smart and the author of Facts Can’t Speak for Themselves.