Have you ever had an opponent attempt to back-out of a stipulation? This post on the Federal Evidence Review blog tells us about a new case on the subject and gathers other cases on point.
The post explains that "after a stipulation is freely entered, the courts will view with great disfavor any efforts to walk from the stipulation."
This post will save you hours of legal research on the topic.
Burchfield v. CSX Transp., Inc. , __ F.3d __ (11th Cir. March 30, 2011) (No. 09–15417), is a interesting decision that addresses the issue of the admissibility of videos made by third parties.
The plaintiff objected to the defendant’s use of the video and maintained that it
depicted a recreation of his accident. In order for the video to be admissible, Burchfield asserts that CSX was required to prove that the testing on the video was performed under substantially similar conditions as those surrounding his accident. To make that showing," the defendant sought the testimony of the maker (Wolf, a rail consulting expert for the third party employer) of the video. The defendant proceeded on a different theory, The defense insisted that the "video was not a recreation such that it would be subject to a heightened foundational standard" of substantial similarity. Rather, the defendant contended that "the video was properly admitted because it was authenticated under Fed.R.Evid. 901(a), which requires a lesser showing from a witness laying a foundation for a photograph or motion picture.
A recent opinion from the Alabama Supreme Court reminds us that many things – even obscure things – can cause a reversal of jury verdict.
In Ford Motor Co. v. Duckett, No. 1090833, (Ala. 2/11/2011) a unanimous Alabama Supreme Court reversed a multi-million dollar verdict in favor of a plaintiff because the trial judge did not properly handle the jury selection process. The products liability trial was expected to last as many as four weeks, and the trial judge asked all potential jurors who were gathered in a jury assembly room to indicate whether they could serve during a three or four week trial. Those who indicated “yes” went through traditional voir dire. The defense objected to this course of action, saying that the judge was “asking for a jury of volunteers” in violation of Alabama law and that they were entitled to a randomly selected jury.
Despite the absence of any case law directly on point, the Alabama Supreme Court held this method of selecting jurors for participation in the ultimate jury selection process was inappropriate under Alabama law. The Court noted that while no one challenged the composition of the original jury pool, the trial judge committed reversible error when he reduced the size of the pool by asking who could serve for a trial expected to last three to four weeks.
Yesterday I shared data on auto negligence cases from Shannon Ragland’s Tennessee Jury Verdict Reporter Year in Review 2010. You can order your own copy of the publication here.
Here is some other data of interest:
There is 15 verdicts of $1,000,000 or more, increasing the total number of million dollar verdicts for the last six years to 84. The two million dollar verdicts in auto wreck cases last year involved drunk drivers. One such verdict was discussed in the previous post. I have been told, but do not know with 100% certainty, that the other $1 million verdict was against a man with very few assets and only $25,000 in liability coverage.
Shannon Ragland from Louisville, KY has a company called Jury Verdict Publications. Shannon gathers jury verdict data in several states and publishes a monthly report for each state. He also publishes an annual review for each state, which includes all of the jury verdicts for the prior year and analyzes the data that he has gathered. The annual review also includes data from previous years.
Over the next few days I will be sharing some of the data in the Tennessee Jury Verdict Reporter Year in Review 2011. You can order your own copy of the book from Shannon here.
What I like about Shannon’s work is that he actually analyzes the information he gathers, unlike those that prepare the annual report on civil filings issued by the Tennessee Administrative Office of the Courts. Please note that I do not intend to criticize the AOC by comment – it gathers data from others (court clerks) and simply publishes it. Shannon gathers data and studies it. Big difference.
The Oregon Supreme Court has ordered a new trial in a case where defense counsel’s closing argument included a discussion of the testimony of an expert who never testified at trial. The majority and dissenting opinions collect law from across the country on this issue and provide a gold mine of information for lawyers facing a similar issue.
You read that correctly. In Cler v. Providence Health System -Oregon, SC S056715 (Ore. SC 12/30/10), plaintiff’s counsel remarked in closing argument that defense counsel did not call any independent nurse as an expert witness in support of its case. In return, and over plaintiff’s counsel’s objection, defense counsel said this (among other things):
[The defense oncology nurse expert] was here [on the firth day of trial] prepared to testify in the afternoon. She sat in the courtroom all afternoon, and she didn’t get on because [plaintiffs’ counsel] was calling Mr. Cler in the afternoon. She had to leave on the following day. She got on a plane. She was scheduled to go on vacation. That’s why you didn’t hear from [her]. She was prepared to be here. She sat in the courtroom all that afternoon, and again, she was prepared to testify and would have testified in our case and supported our case." [Footnotes in opinion omitted.]
Once again, I feel compelled to share the good work of Elliott Wilcox at Winning Trial Advocacy Tips. Elliott reminds us that we lose the power of an effective cross-examination when we convene with co-counsel and the end of good cross. He offers this tip:
To take advantage of recency during your next examination, don’t wait until the very end of your examination to ask for help. Instead, keep a handful of questions on a major topic in reserve before asking to confer with co-counsel. Once you’ve concluded your off-the-record conversation, return to the lectern and hit the witness with your final series of questions. Much like the encore at a concert, this series of questions will be more memorable, because it stands out from the rest of your examination. All that’s left to do is smash a guitar against the witness stand, so that when you walk offstage your jurors will be left with the impression that your examination was a “smashing” success!
Add Elliott’s blog to your RSS reader.
The Internet provides all of us easy access to information, and it is no surprise to anyone that jurors are going there to get data during trials.
This article from MSN reveals that "Reuters Legal, using data from the Westlaw online research service, a Thomson Reuters business, compiled a tally of reported decisions in which judges granted a new trial, denied a request for a new trial, or overturned a verdict, in whole or in part, because of juror actions related to the Internet. The data show that since 1999, at least 90 verdicts have been the subject of challenges because of alleged Internet-related juror misconduct. More than half of the cases occurred in the last two years."
Here is recent post about an effort of the Committee on Court Administration and Case Management of the United States Judicial Conference to develop pattern jury instructions to address the increasing incidence of juror use of such devices as cellular telephones or computers to conduct research on the Internet or communicate with others about cases.
Here is yet another example of an error in calculations by a jury that resulted in a less-than-intended verdict. According to jury verdict expert Shannon Ragland this is a frequent occurrence.
How do you protect your client from a similar result? First, make sure the jury understands that it should award the entire amount of damages and not attempt to reduce them by the percentage of fault to the plaintiff. That instruction should be part of the jury instructions and, if possible, try to include a brief instruction to that effect on the verdict form.
Second, walk the jury through the verdict form during your closing argument and emphasis the point.
Winning Trial Advocacy Tips is the best trial advocacy blog on the web. Click here to read a recent post from the blog on tips for opening statements.
An excerpt:
In the courtroom, you probably talk in the past tense during opening statements and direct examination because you’re describing events that have already happened and reached finality. You already know the conclusion – but your jury doesn’t. This is the first time they’ve heard about the events. If you want to bring certain areas of your questioning to life, you need to switch your language to the present tense. By switching to the present tense, you’ll help your jury feel that things are happening right now.
Day on Torts