Yesterday I posted changes to the Federal Rules of Evidence.
Below, in the language of US Courts, are the changes to the Federal Rules of Civil Procedure. Absent action by Congress, the changes are effective December 1, 2006.
Civil Rule 9 (Pleading Special Matters) (conforming amendment pertaining to Supplemental Rule G)
The United States Supreme Court has approved changes to several rules of the Federal Rules of Evidence. The changes become effective December 1, 2006 unless Congress votes to overturn them.
Here is the language of the rule changes from the US Courts website:
Evidence Rule 404 (Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes) (clarifies that evidence of a person’s character is never admissible to prove conduct in a civil case)
Here is another case out of our appellate courts that reminds us of the need to make a record.
Plaintiff failed to object to the introduction of certain medical records in a personal injury case. The defendant read excerpts of those records to the jury to establish the existance of a pre-existing condition. Citing Grandstaff v. Hawks, the Eastern Section of our Court of Appeals said “[o]bjections to the introduction of evidence must be timely and specific. … A party who invites or waives error, or who fails to take reasonable steps to cure an error, is not entitled to relief on appeal. Failure to object [to] evidence in a timely and specific fashion precludes taking issue on appeal with the admission of the evidence.”
The Court found that Plaintiff did offer an objection to the method of introduction of the pre-incident prescription records of the plaintiff, i.e. a paralegal read from a summary of records from five different pharmacies. However, on this issue the Court used the familiar “abuse of discretion” rule to uphold the decision of the trial judge.
Lawyers who cheat need to be popped – hard. Here is an article about a defense lawyer who commented during opening statement on evidence that had been excluded by the trial judge. The appellate court reversed an order of sanctions against him.
I was in a trial a little over a year ago where the defense lawyer repeatedly violated an order on a motion in limine. The lawyer knew that we did not want a mistrial and the judge refused to come down hard when the order was violated. I knew that asking for sanctions would be an exercise in futility.
I do not know all of the facts of the PA case so it is difficult to know whether the appellate decision is right or wrong, but from what appears in the article it seems to me that, at the very least, the defense lawyer knew or should have known that he was pushing the envelope. In my opinion it is the responsibility of the lawyer to know what the judge has ruled in limine, and if he or she does not understand the ruling to ask for a clarification. It is not appropriate to gamble on what the order means and ask for forgiveness later.
Yesterday I wrote about Carpenter v. Klepper and its discussion about the locality rule. The last third of that opinion is worth reading, too – it addresses the level of specificity required when seeking discretionary costs under Tennessee Rule of Civil Procedure 54.04(2). Read it for some insight on how these issues should be addressed via post-trial motion.
I wrote last week that the Tennessee Supreme Court approved certain changes to the Tennessee Rules of Civil Procedure (and other rules of procedure).
What I did not address is the proposed rule change that was not adopted by the Court. That is the proposed change to Rule 8.01, which I argued against in this post. Under this proposal plaintiffs would have been required to state the amount that was sought as damages in the original complaint.
I am glad that the Court did not adopt this proposal. Too many lawyers use the ad damnum as a marketing tool, knowing that a press that does not understand litigation will look only to the amount sued for to determine whether a lawsuit is noteworthy.
Here is an article written by a trial consultant for defendants about how to minimize damages in significant cases.
Very interesting.
Thanks to David Swanner for telling us about it. I would recommend you check David’s blog every day; I do.
An appellate court in California reversed a jury verdict because of a trial court’s refusal to instruct the jury pursuant to the federal standard of care requiring “extreme care” as opposed to the reasonable care standard. The appellate court held that this was prejudicial error requiring a remand for a new trial.
California law has a negligence per se just as we have in Tennessee. It allows violations of federal regulations to give constitute negligence per se.
Read this:
The Tennessee Supreme Court has just reversed a summary judgment because there was not an appropriate record to permit the Court to determine if summary judgment was appropriate. The trial court granted summary judgment in favor of the appellee without indicating its reasoning for doing so. The appellee’s motion for summary judgment did not state the grounds for summary judgment with particularity and no memoranda in support were contained in the record on appeal.
Here is the decision.
The Court put a burden on the appellant and the appellee to ensure that the record is in order. The Court put particular emphasis on the fact that the appellee was trying to uphold a summary judgment.
I mentioned in a previous post that the Civil Rules Commission has proposed several rules changes that, if adopted by the Tennessee Supreme Court and the Legislature, will become effective on July 1, 2006.
One proposal is a change to Rule 37 and provides that a party who without substantial justification fails to supplement or amend discovery responses pursuant to Rule 26.05 will not be able to use that evidence at trial. The proposed rule gives rise to the risk of imposition of other sanctions as well, including advising the jury of the failure to amend or supplement. Your can read the proposed rule here.
Day on Torts