Articles Posted in Trial

The General Assembly has ratified changes to the Tennessee Rules of Evidence, Civil Procedure, and Appellate Procedure.

Here is the Order setting forth the rules changes for the TRE, TRCP, and TRAP.

The most significant change for tort law practitioners is the change to TRCP 59.07.  This language will be added to the end of the current language:  "A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury for any of the reasons for which new trials have heretofore been granted."   The new comment provides that "[m]otion for new trial grounds have been governed by case law. A helpful list can be found
in Professor Larry A. Pivnick’s treatise, Tennessee Circuit Court Practice §28:1 (Thomson West)."

The American Bar Association has released four additions to its "Civil Trial Standards."  The new standards addresss these topics:  Use of Tutorials to Assist the Court, Summary Exhibits and Witnesses, Organizing the Complex Case for Trial, and Judicial Involvement with Settlement.

Some of the earlier standards (Juror Notebooks, Juror Questioning of Witnesses, etc.) have found their way into our rules of civil procedure.

From the ABA:  "The Standards fill an important gap. They recommend procedures and otherwise furnish guidance that is not available elsewhere and are designed to foster and ensure a fair trial in both state and federal court. Critics of the jury trial have questioned the ability of jurors to decide complex cases fairly. The procedures recommended in the Civil Trial Practice Standards are particularly useful in complex cases and provide jurors the tools they need to come to fair decisions in all cases."

The risks  of pushing through the envelope at trial are discussed in this opinion from the Ohio Supreme Court:

"In addition to the excessive damages given under the influence of passion or prejudice, the trial court detailed the misconduct of McLeod’s counsel. Civ.R. 59(A)(2). The court described counsel’s conduct as “discourteous” and “theatrical,” including “constant interruption of opposing counsel without bothering to object and obtain a ruling” so that he could “convey to the jury his own idea of what the witness should be saying, thus testifying for the witness, rather then [sic] making a genuine and valid objection to the question.” These interruptions, for example, included statements such as “This is all made up,” and “where did he come up with that, Judge?” and were asserted with no accompanying objection. This type of conduct became so prevalent that the trial
judge admonished counsel during a conference outside the presence of the jury."

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You have the smoking gun email.  Now, what do you do with it?

The law of discovery, good old fashioned hard work and a little luck can lead to fantastic evidence.  But great evidence in your briefcase doesn’t win cases at trial – you have to know how to get that evidence before the factfinder.

This article from www.law.com addresses how to get emails into evidence.

The highest court of New York has ruled that a "high-low" agreement must be disclosed to the judge and to non-settling defendants.

This is what the Court said:

To ensure that all parties to a litigation are treated fairly, we hold that whenever a plaintiff and a defendant enter into a high-low agreement in a multi-defendant action which requires the agreeing defendant to remain a party to the litigation, the parties must disclose the existence of that agreement and its terms to the court and the non-agreeing defendant(s). This result strikes a proper balance between this State’s public policy of encouraging the expeditious settlement of claims, and the need to ensure that all parties to a litigation are apprised of the true posture of the litigation so they may tailor their strategy accordingly. Disclosure provides a non-agreeing defendant a meaningful opportunity to place on the record how it intends to use the agreement at trial, if at all, and affords the trial court an opportunity to weigh the interests of all the parties in considering the extent to which an agreement may be utilized in that forum. Of course, the determinations as to what effect, if any, the existence of the agreement will have at trial, including whether such an agreement should be disclosed to the jury, are matters that lie within the sound discretion of the trial court.

The penalty for violating the rules of cross-examination and closing:  reversal.

Here is how the Court described the violation: "the cross-examination of [defense expert] Dr. Ramirez went beyond permissible grounds on the issue of bias and amounted to a prohibited attack on Dr. Ramirez’s character when plaintiff’s counsel repeatedly argued that Dr. Ramirez had intentionally destroyed documents that had never been created and of which he was under no duty to compile or produce. … Plaintiff’s counsel’s arguments to the jury that defense counsel was “pulling a fast one,” “hiding something,” and “trying to pull something,” was tantamount to calling defense counsel liars and accusing them of perpetrating a fraud upon the court and jury."

Learn the rules.  And follow them.    Indeed, work hard to follow them in the heat of the moment and  when your opponent is violating them. There is no reason to believe or even suspect that Plaintiff’s counsel here intentionally violated the rules of trial, but the fact remains that his client lost a verdict in her favor.   And that does neither client nor lawyer any good.

I remember years ago trying a case against a well-known lawyer in Nashville (who is still practicing, by the way.) I moved in limine to prevent certain testimony from being introduced into evidence; my motion was granted.

Later that day I saw the witness in the hallway who would have been in the position to offer the excluded testimony. I asked the witness if he had been informed about the ruling. He said that he had been told by my opponent that he (the lawyer) could not ask him (the witness) a question about the matter that was excluded but he (the witness) could volunteer it.

Here is a case from Florida that explains is simple terms the obligation of a lawyer who knows that a witness has testimony that has been ruled inadmissible.

How do you get computerized records into evidence? A recent case, In re: Vinhnee, 2005 WL 3609376 (B.A.P. 9th Cir. Dec. 16, 2005), has an extended discussion of the issue.

This case conflicts with the law in our federal circuit, United States v. Salgado, 250 F.3d 438, 453 (6th Cir. 2001), which has a more permissive approach to laying the requisite foundation.

The case is the subject of a discussion in this article published at www.law.com website. The article cites several different cases on the subject.

The Rhode Island Supreme Court has ruled that a plaintiff who is injured in a slip and fall accident at a restaurant is entitled to a spoliation instruction if the restaurant, contrary to policy, did not prepare an accident report.

The Court re-affirmed existing law in the state which provided that “it was appropriate for a trial justice to give a spoliation instruction where a corporate defendant (1) failed to produce a document which the evidence tended to show was routinely generated by the corporation and (2) was unable to provide a satisfactory explanation as to why the document was not prepared with respect to the incident in the case before the court.””

The dissenting justice said as follows: “In this case, no evidence whatsoever was introduced to explain how the liquid came to be on the floor, how long it had been there before Mrs. Mead fell, or whether the defendants had any actual or constructive notice of its presence. It is difficult to discern a factual predicate for the defendants’ liability other than by drawing an adverse inference from their failure to produce an accident report. A necessary precursor to the jury’s ability to draw such an adverse inference, however, was a determination that an accident report at one time existed. Lacking that factual predicate, the majority’s endorsement today of the trial justice’s instruction, in effect, commandeers the doctrine of spoliation to enforce, with severe consequences, a corporate policy of creating accident reports.”