April 4, 2014

"Anatomy of a Trial, Second Edition" focuses on the value of rhetoric

I have always believed that persuasion is an art form and that trial lawyers who master it will find themselves on the winning end of many of the cases they bring to trial. Rhetoric is the art of selecting how to persuade others to your side. Therefore it too is an art form and, indeed, lawyers who master the art of rhetoric will be the most persuasive. In the second edition of my book, Anatomy of a Trial: A Handbook for Young Lawyers, which was released last month by the American Bar Association, I outline in detail the ways in which mastering the art of rhetoric can work to a lawyer’s advantage in the courtroom. Many of my examples and inclusions are new to this edition.

In Anatomy of a Trial, I use real-life, running commentary to show how to hone your persuasive approach to the audience you are trying to reach. For example, the persuasive technique you might use to get your significant other to agree to some bold purchase would likely not be the same as what you might use to ask your boss or the managing partner at your firm to spend company dollars on an equally bold purchase. For some audiences, an emotional appeal might be the most persuasive, as in, “Honey, how many times in our lives will we have an opportunity like this – let’s live it up!” On the other hand, with the boss, you would likely find that an emphasis on long-term cost cutting or business development would be far more persuasive rhetoric.

Similarly, the most persuasive rhetoric in a trial before a jury of 12 in Los Angeles might not be the most persuasive rhetoric for a trial before a jury of six in Kansas, or before a judge, with no jury, in Maryland. For this reason, in my second edition of Anatomy of a Trial, I include commentary and examples from three trials. Two of the trials were featured in the original edition of the book and the third is new to this edition. The first trial involves a high-profile criminal case featuring several famous names on the political scene; the second is a civil case involving a medical malpractice claim in Maryland. The trial added to the second edition of the book involves a non-jury civil case I tried in federal court in Maryland. I have included it to show how the rhetoric you might choose for a case tried before a judge will likely differ from the rhetoric you would use before a jury.

You can find the new edition of Anatomy of a Trial: A Handbook for Young Lawyers on the ABA webstore. It will soon be available in an e-reader version as well.

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March 14, 2014

Attention those who have cases in appellate courts: "Appellate Practice for the Maryland Lawyer, State and Federal, Fourth Edition," just released.

It was November 1, 1977 when the Maryland State Bar Association published the first edition of The Maryland Appellate Practice Handbook conceived and edited by yours truly. There are stories to tell about those days and how the book was then launched. But those stories are for another day. The book was a two-volume text featuring the nuts and bolts of appellate practice. The contributors, including the editor, shared ideas on every phase of the appellate process, from preserving the record to motions for reconsideration after appellate-court mandates.

Over the years numerous modifications helped keep the book current. Two significant and welcome changes were the advent of my friend and colleague at the Bar, Andrew D. Levy, as co-editor, and the emergence of the first volume edition of the book under its current title.

Recently Andy and I released the fourth edition of the book: Appellate Practice for the Maryland Lawyer, State and Federal (Sandler and Levy, Editors, MSBA, 2014). The first part of the book penetrates the inner workings of the Court of Appeals of Maryland, the Court of Special Appeals of Maryland, and the United States Court of Appeals for the Fourth Circuit. The inside scoops are revealed not by counsel but by prominent judges on the courts, including two chief judges. The chapters are then followed by chapters contributed by the clerks of the courts and by court mediators.

The second part of the book examines brief-writing and oral argument with chapter contributions from expert appellate counsel and the judges. The reader can brush up the current law and techniques in filing motions and petitions for certiorari. Unique issues in administrative appeals and criminal appeals are also featured, as are sample briefs and cert petitions.

Over 37 judges and lawyers wrote chapters in the new edition, including the editors. The editors hope to have contributed to the improvement of appellate practice and to the dialogue of what makes an outstanding appellate brief and oral argument.

The editors take no royalties for the book, but we do take your suggestions for improvements, which we can include in future supplements and the next edition.

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February 28, 2014

Maryland Court of Appeals weighs in on voir dire

While opinions vary on which aspect of trial is most important, I suggest it is voir dire, the process of selecting the jury. The term has its origin in the oath taken by jurors to speak the truth. The word “voir” is said to derive from the Latin word “verum” meaning truth. Many cases are lost the second the jury is sworn in. Great advocacy cannot save the day when the wrong jury is in the box. Trial lawyers should pay more attention to preparing for voir dire, and even consider asking the court to permit submission of a jury questionnaire.

Many years ago there was a trial lawyer who was known to state confidently in open court during jury selection, “Your Honor, I have no need to strike any of these good people seated in the jury box. They all are very satisfactory to the defense.” This same lawyer could never understand why he lost so many cases. He lacked appreciation for the importance of attempting to learn the jurors’ predispositions, beliefs and values, the keys to reaching minds and hearts of jurors in the courtroom deciding the case. All of us possess predispositions to think and behave in a particular way. These predispositions are based on experience and play a role in jury deliberations.

While the process of voir dire permits trial counsel to pose questions to the jury panel to discover bias, only some courts, such as Texas state courts, permit full voir dire where lawyers directly ask questions to the individual prospective jurors. In Maryland, state courts offer a limited voir dire. This is true for mosts courts across the country, including most federal courts, barring a cause celebre. The process involves counsel preparing questions for the trial judge to pose. A few states, including Maryland, further limit voir dire questions to elicit responses only for the purpose of using strikes for cause as distinguished from posing a question to determine if peremptory challenge should be made.

Last week the Maryland Daily Record gave us a helpful rundown of several new Maryland Court of Appeals modifications to some often-asked voir dire questions. The Court of Appeals, while rendering a couple of recent opinions, clarified when certain questions proposed by counsel should be asked: In Pearson v. State, 432 Md., Court of Appeals, No. 49, September Term, 2013, Maryland's highest court held that (1) a trial court need not ask during voir dire whether any prospective juror has ever been a victim of a crime, but, on request, a trial court must ask during voir dire: “Do any of you have strong feelings about [the crime with which the defendant is charged]?” and (2) when all of the state’s witnesses are members of law enforcement agencies and/or when the basis for a conviction is reasonably likely to be the testimony of members of law enforcement agencies, on request, a trial court must ask during voir dire: “Have any of you ever been a member of a law enforcement agency?”

Pearson emphasized my previous point that Maryland employs limited voir dire. That is, in Maryland, the sole purpose of voir dire is to ensure a fair and impartial jury by determining the existence of specific cause for disqualification. Unlike many other jurisdictions, facilitating the intelligent exercise of preemptory challenges is not a proper purpose of voir dire in Maryland. Thus, a trial court need not ask a voir dire question that is not directed at a specific cause for disqualification or is merely fishing for information to assist in the exercise of preemptory challenges.

The court explained its reasoning why a trial court need not ask during voir dire whether any prospective juror has ever been the victim of a crime: a prospective juror’s experience as the victim of a crime lacks a demonstrably strong correlation to a mental state on the part of the juror that would give rise to specific cause for disqualification. However, the Court of Appeals held that on request, a trial judge must ask during voir dire whether any prospective juror has strong feelings about the crime with which the defendant is charged. State v. Shim, 418 Md. 37, 54, 12 A.3d 671 (2011). The “strong feelings” voir dire question makes the “victim” voir dire question unnecessary by revealing the specific cause for disqualification at which the victim voir dire question is aimed.

Pearson held that on request a trial court must ask the “strong feelings" question with the following phraseology: “Do any of you have strong feelings about [the crime with which the defendant is charged]?” Pearson disapproved phrasing the question as a compound question, i.e., “Does any member of the jury have such strong feelings about [the charges in this case] that it would be difficult for you to fairly and impartially weigh the facts?” The reason the court disapproved of the compound question is that it shifts from the trial judge to the prospective jurors the responsibility to determine if the prospective juror is biased.

If a prospective juror responds affirmatively to the “strong feelings” voir dire question, that juror should be individually questioned by the attorneys; or on request, by the trial judge, and the trial judge would then determine whether that prospective juror’s strong feelings about the crime with which the defendant is charged constitutes specific cause for disqualification.

Pearson also held that where all of the state’s witnesses are members of law enforcement agencies and/or where the basis for a conviction is likely to be the testimony of members of law enforcement agencies, a trial court on request must ask during voir dire: “Have any of you been a member of a law enforcement agency?” A defendant is entitled to know whether a prospective juror has worked in the law enforcement field if all of the state’s witnesses and/or the witnesses whose testimony is reasonably likely to be the basis for a conviction are members of law enforcement.

Just as with the “strong feelings” question, the appeals court stressed that a juror is not automatically disqualified just because she responds affirmatively to the “member of the law enforcement agency” voir dire question. After the prospective juror is individually questioned by the attorneys or, upon request, by the trial court, the trial court determines whether or not the prospective juror’s having been a member of a law enforcement agency constitutes specific cause for disqualification. The court noted in Pearson that its holdings in that case shall apply prospectively as of February 21, 2004, the date Pearson was decided.

Trial lawyers in Maryland are eager for the Rules Committee of the Court of Appeals to adopt individual voir dire. Alas this wish is unlikely to come true. For more insight into voir dire, see Anatomy of a Trial: A Handbook for Young Lawyers, 2nd Edition (ABA, March 2014)

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December 30, 2013

Immigration Status in Personal Injury Cases: Ayala v. Lee

Should evidence concerning a plaintiff's immigration status be admissible in a personal injury trial? Maryland's Court of Special Appeals says yes -- if the evidence is relevant and not prejudicial with respect to damages. Yesterday The Daily Record published a helpful story dissecting the Court's decision in Rigoberto E. Domingos Ayala, et al, v. Robert Frederick Lee, a case resulting from an automobile accident in which two undocumented workers were severely injured.

The decision, written by Judge Robert A. Zarnoch, overturns a jury verdict for the defense and states that the plaintiffs are entitled to a new trial on the question of damages. According to the unanimous three-judge panel, the evidence shows that the trial court should have granted the plaintiffs' motion for judgment as to liability.

"Reviewing cases from around the country," The Daily Record reports, "the Court of Special Appeals said neither federal law nor a Supreme Court case from 2002 precludes an award of lost wages and damages to undocumented immigrants."

But immigration status may factor into how damages are calculated, according to the Court, and the decision offers guidelines as to what evidence the jury could consider.

Read the full story here (subscription required).

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December 4, 2013

An Employment Arbitration Agreement Checklist

Few matters are as frequently the subject of legal disputes as the employer-employee relationship. Employers often seek to limit the perceived uncertainty and expense of litigation by mandating that employment disputes be resolved through binding arbitration. Generally, arbitration is viewed as a more efficient and less costly means of handling such disputes. In crafting arbitration agreements, lawyers representing employers should be careful to follow a few simple rules to ensure that the document will withstand a challenge.

1) Put the agreement in writing. While this may seem obvious, several cases serve as a warning that arbitration agreements that are not in writing may not hold water. For example, in Campbell v. General Dynamics Government Systems Corp., 407 F.3d 546 (1st Cir. 2005), an arbitration agreement that was sent to employees as an attachment to an e-mail message was found by the court to be unenforceable. Similarly, courts have sometimes invalidated agreements that are contained in employment manuals rather than set forth in a signed document. The best method is to use a stand-alone agreement that is signed by both the employee and a representative of the employer. The agreement should also explicitly state that the parties are waiving their rights to bring suit in a court or other tribunal.

2) Make the language of the agreement clear and simple to understand. When drafting an arbitration agreement, it is important to provide an unambiguous statement as to which disputes are subject to arbitration. Vaguely drafted agreements are likely to increase the risk of litigation. If an employee can make a strong claim that a given matter falls outside the scope of the agreement to arbitrate, the employer may well end up in court.

3) Be thorough. At a minimum, the agreement should address the following issues: How many arbitrators will there be? What minimum qualifications must the arbitrators have? How will the arbitrators be selected? What law will govern? Will evidentiary rules apply? Where will the arbitration be held? Will the parties have an opportunity to submit written briefs? Will the arbitration be binding or will the parties have the right to appeal the decision to a court or other tribunal? Will discovery be allowed? While taxing, considering these matters before a dispute surfaces will help reduce the tension that parties face after controversy has arisen.

4) Don’t give unilateral control over the agreement to the employer. If you do, a court could invalidate the agreement. In Cheek v. United Healthcare of the Mid-Atlantic, Inc., 378 Md. 139 (2003), the Maryland Court of Appeals invalidated an arbitration agreement that allowed the employer unilaterally to alter, amend, modify, or revoke the arbitration agreement at any time and without notice. The court’s rationale was that the agreement lacked consideration and that the employer’s promise was illusory. This ruling has been distinguished in other cases. The Court of Special Appeals, for example, upheld enforceability of an arbitration agreement, even though the agreement granted the employer the right to amend the agreement on 30-days’ notice to the employee. See Holloman v. Circuit City Stores, Inc., 162 Md. App. 332 (2005). On the other hand, courts have invalidated arbitration agreements that grant an employer control over the pool of arbitrators, shorten limitation periods, or limit the damages otherwise available under applicable employment laws. As this area of law is clearly evolving, employers should try to strike a balance that will give them adequate control over the arbitration process and treat employees with fairness.

5) Consider alternatives to arbitration. Employers and their attorneys should not automatically assume that arbitration is the best solution. In fact, arbitration may not be the most efficient means of settling all employment disputes. Mediation and other forms of alternative dispute resolution should be considered. It is also possible that a lawsuit filed in state district court will produce a cheaper and quicker result.

In some organizations the employment arbitration agreement is something rarely noticed or discussed until trouble arises. The day a lawsuit arrives is obviously not the best time to dust off that remarkably important document. Even if taken for granted, a company’s arbitration policy could have long lasting consequences and should be attended to with commensurate care.

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October 2, 2013

Shifting Gears: Rules on Relating Back

Even the most careful pleader will sometimes learn new facts or change views of a case after filing an initial pleading. This new information or perspective may very well develop after the running of the statute of limitations. Fortunately federal and state law provides some recourse to attorneys in this potentially troubling situation.

To accommodate for changes in strategy or new revelations, the relation back doctrine gives attorneys the opportunity to amend their complaints well after the limitations deadline has passed. But courts will not always approve of late-breaking amendments. For attorneys who find themselves shifting gears in the middle of a case, knowing the relevant rules can be crucial.

In federal court, Federal Rule of Civil Procedure 15 (c) is the key text allowing amendments to pleadings to “relate back” in time to the filing of the original pleading. The point of the rule is to prevent parties from hiding behind the statute of limitations to fend off new but legitimate claims or defenses arising out of the same conduct, transaction or occurrence set forth in the original pleading. State laws will vary. In Maryland, for example, there is no specific relation back provision but the doctrine is sometimes recognized as a result of common law court decisions.

To illustrate how relation back works, let’s consider the troubles of Mr. Smith, who has been fired from his job as head concierge at The Bloomfield Hotel. According to the manager, Mr. Wells, Smith was fired because he had stolen a television. Smith denied the allegations. Even so, two weeks later Wells circulated an internal newsletter explaining Smith’s firing in an attempt to curb future theft. Smith consulted a lawyer and filed a complaint against the hotel alleging wrongful termination and libel. A week after the complaint’s filing the hotel’s counsel filed a motion to dismiss the libel count for failure to state a claim upon which relief could be granted. Smith’s counsel decided to amend the complaint to clarify the libel count, but he filed the amendment after the running of the one-year statute of limitations.

Question: Will Smith’s amendment to the complaint to clarify or change the libel claim relate back?

Most likely yes. In both Maryland and federal court, relation back will be permitted to modify claims for clarity as long as the operative factual scenario in the amendment remains essentially the same as the scenario articulated in the original complaint. However, if Smith discovered that his claim actually ought to be for slander (against an employee who told others about the alleged theft), the answer becomes more opaque.

In federal court and in Maryland, an amendment is generally permitted to relate back if it shifts from one legal theory to another -- for example from libel to slander -- as long as the alteration relates to the same facts as originally alleged. But if the shift is so drastic that the defendant arguably had not been given adequate notice of the conduct that gave rise to the original claim, the amendment might not relate back.

In other words, relation back works only if the desired modifications focus on the same basic dispute. You can change weapons mid-battle, but you can’t move the battlefield altogether.

In our hypothetical, an amendment that changes the claim from libel to slander would relate back because the new legal theory is based upon the same facts as the initial claim (the allegations of theft, the firing, and the newsletter).

Suppose, however, that two weeks later, Smith discovers that Bill, the hotel’s head of housekeeping, was the person who had told manager Wells that Smith had stolen the television. Smith believed that Bill was lying and Smith’s lawyer added him as a new defendant.

Will the amendment adding Bill to the case relate back?

In federal court, Bill could be added, and the amendment would relate back. When an amendment seeks to substitute a defendant, correct a mistake made in the naming of the defendant, or even add another defendant, the amended pleading will still relate back to the original pleading. Again, this rule is subject to the “same conduct, transaction or occurrence” standard. In Maryland however, relation back is often not permitted when a new defendant is added, but is permitted to correct a mistake made in naming the defendant.

Interestingly, in Maryland, the addition of a plaintiff will relate back as long as the defendant was on notice of the claim against him. In federal court, adding a plaintiff requires analysis of multiple factors, e.g., whether or not the defendant is prejudiced by the amendment and whether the defendant had adequate notice of the claim against him. Overall, however, the federal rule remains slightly more liberal than the Maryland policy.

Given the complications of the relation back doctrine, litigants should do all they can to settle on a core theory, strategy, and factual foundation well before the statute of limitations becomes an obstacle. This isn’t always possible, of course, and when it isn’t, a good first step is to brush up on Federal Rule 15(c) and Maryland cases on the “relation back” doctrine.

Continue reading "Shifting Gears: Rules on Relating Back" »

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August 22, 2013

SmithKline Beecham v. Abbott Labs: Should Batson apply to gay jurors?

All eyes are on California’s Ninth Circuit Court of Appeals, which is tasked with deciding whether sexual orientation can be used peremptorily to exclude potential jurors in federal court. The Recorder, a California legal publication, reports that the appellate court has appointed a panel to decide the issue, which will likely have broad implications in courts around the country.

As explained in a New York Times article last month, at the center of this debate is SmithKline Beecham v. Abbott Laboratories, which involves two large pharmaceutical companies locked in an antitrust battle over a commonly used HIV medication. When a lawyer representing Abbott used a peremptory strike to remove a potential juror from the jury pool, the SmithKline lawyer objected that the Abbott lawyer was doing so because the potential juror was gay. Though none of the questions in SmithKline’s voir dire focused on sexual orientation, the prospective juror voluntarily referenced his male partner in answering some of the questions.

Since peremptory strikes are those that can be used without cause, Abbott’s lawyer could have explained his strike in a multitude of inoffensive ways, so long as his strike did not involve race or gender. The race and gender distinction is known as the Batson challenge, in reference to the 1986 U.S. Supreme Court decision in Batson v. Kentucky that peremptory challenges during voir dire cannot be made on the basis of race. The Batson challenge was later expanded to include gender as well.

The question of whether Batson should address sexual orientation in addition to race and gender as exclusions to the peremptory-strike rule is more complicated than either of the other two exclusions. For one, it is not always obvious whether someone is gay, and second, questions designed to pull out this information would likely be unacceptable to all. Still, many, including myself, would agree that Batson should be expanded to include sexual orientation.

Typically, trial lawyers can get around a Batson challenge by simply finding a more innocuous reason to excuse a potential juror, even if the real reason for wanting a juror excluded does involve race or gender – or sexual orientation. Since peremptory strikes are otherwise discretionary, a trial lawyer can simply claim as an excuse the potential juror’s body language, wardrobe choice or a job-related bias, as in, “Your Honor, I believe Mr. Smith’s job might render him biased against the defendant in this case.”

That in SmithKline, the attorney confronted the issue of sexual orientation head-on – whether intentional or not -- now forces the courts to confront the issue as well. Stay tuned.

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August 7, 2013

Email Signatures Can Be Binding: Forcelli v. Gelco

A New York appellate court has confirmed what many people may already presume: that an email can sometimes carry the same clout as a formal, signed document. The decision reinforces the point that email correspondence in the context of negotiations must be undertaken with care.

As reported last week in the New York Law Journal, the appellate judges in Forcelli v. Gelco Corporation unanimously ruled that a signed email attesting to a negotiated agreement – and signed by email signature -- is just as binding as a signature on the agreement itself.

New York statues, like Maryland’s, instruct that an agreement must be “signed” by the parties or their attorneys in order to be valid. However, in the decision handled down by New York’s Appellate Division, Second Department, Justice Sandra Sgroi wrote, “Given the widespread use of email as a form of written communication in both personal and business affairs, it would be unreasonable to conclude that email messages are incapable of conforming to the criteria…simply because they cannot be physically signed in a traditional fashion.”

In Forcelli, the dispute focused on the enforceability of an email that summed up the terms of a settlement over a car accident. Plaintiff John Forcelli had sued Gelco Corporation for injuries sustained when another vehicle collided with his. Gelco owned the vehicle that hit Mr. Forcelli’s car.

The email in question was sent to all parties involved and was “e-signed” by the claims adjuster representing Gelco’s insurer, reflecting that all parties had agreed orally that Mr. Forcelli would be paid a settlement of $230,000. The email attached a Medicare document for signature; at the bottom of the email the adjuster typed, “Thanks Brenda Greene” (her name).

Mr. Forcelli signed his copy agreeing to the terms, had it notarized and then his attorney filed a motion to release the other parties from all further court action. He did so under the presumption that the documents would actually be signed and returned per the agreement and that he would receive his settlement money.

Once the court accepted Mr. Forcelli’s motion to release the other parties and vacated the matter, Gelco’s attorney faxed a letter to Mr. Forcelli’s counsel telling him that the settlement was “not consummated” under New York law and that the motion to vacate now relieved Gelco of the $230,000 settlement terms. The court disagreed.

As the attorney for Mr. Forcelli said following the verdict, “This confirms what all reasonable minds would have expected, that mutually agreed to settlements -- where confirmed via email or fax, and followed up by transmittal of settlement documents -- constitutes a binding settlement.”

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July 24, 2013

Beware the "midnight witness" rule

Defendant’s Counsel: “Your Honor I would like to call to the stand Mr. Smith, the defendant in this case.”

Plaintiff’s Counsel: “Objection Your Honor, may I approach?”

The Court: “Counsel, please approach.”

Plaintiff’s Counsel: “Your Honor, I object to Mr. Smith’s desire to now testify about the underlying facts of the case in light of his invocation of his Fifth Amendment right against self-incrimination during the discovery phase of this case.”

Defendant’s Counsel: “Your Honor, Mr. Smith during the discovery phase was confronting criminal charges based upon the same underlying facts of this civil case. Smith couldn’t respond to interrogatories or deposition questions while his freedom was at stake. Now the criminal case has been resolved, and Smith is able to testify.”

The Court: “Counsel I’m going to have to review the case law on this issue. Let’s take a brief recess.”

Will the court sustain the objection? Most likely the answer is yes.

While there is no bright line rule that controls situations like this, federal and state courts have established what is known as the “midnight witness rule.” Developed through many cases over the years, this “rule” effectively prevents a civil litigant from putting on the stand at trial a surprise witness who had previously invoked his or her Fifth Amendment privilege during the discovery phase.

In the annals of Maryland case law, Kramer v. Levitt, 79 Md. App. 575, 588 (1989), perhaps best articulates the reasoning behind the midnight witness rule. The court held that “when a defendant in a civil action pleads his privilege against self-incrimination in response to discovery requests, the defendant is prohibited from testifying at trial on matters pertaining to these requests.”

The Kramer court added that “if a party is free to shield himself with the privilege during discovery, while having the full benefit of his testimony at trial, the whole process of discovery could be seriously hampered.”

Faith v. Keefer
The Kramer decision, however, is not the last word on the subject. In Faith v. Keefer, 127 Md. App. 706, 724 (1999), the Court of Special Appeals made it crystal clear that an individual who invokes his Fifth Amendment privilege is not “forever precluded from giving testimony in any form about the previously undisclosed matter.” (Emphasis on original.)

In Faith, the plaintiff’s wife had been killed while a passenger in a car driven by the defendant Keefer, who was allegedly intoxicated and speeding. As a result of the accident, Keefer was charged with various crimes in addition to being named as a defendant in the civil suit filed by the decedent’s husband and children. At the outset of Keefer’s civil deposition, his attorney noted that Keefer intended to invoke the Fifth Amendment because of the pending criminal charges, and clearly stated that at the conclusion of the criminal matter his client would be available to answer questions. Keefer’s attorney had notified opposing counsel of this position well before the deposition.

After the conclusion of the criminal matter, and four days after the close of discovery, Keefer’s attorney wrote to opposing counsel that Keefer was available for deposition. Keefer also provided answers to interrogatories. But the plaintiff opted not to depose Keefer.

Almost a month after Keefer’s offer to be deposed, the plaintiff filed a motion in limine that sought to exclude Keefer’s testimony and belated interrogatory answers because he had earlier invoked his Fifth Amendment privilege. The trial court denied the plaintiff’s motion, finding that the plaintiff was not prejudiced by the late answers. The trial court’s decision was affirmed on appeal.

The Court of Special Appeals identified several key factors that supported the trial court’s decision to allow Keefer’s belated testimony, including:

(1) Keefer was seeking a relatively brief delay in discovery, until the resolution of his pending criminal charges;

(2) Keefer advised the plaintiff of his intent to assert the privilege for a limited time in advance of the deposition; and

(3) Keefer offered to resume the deposition when the criminal charges were resolved.

Importantly, the Faith court noted that the discovery process was not “seriously hampered” by a deponent asserting his Fifth Amendment privilege when “it [was made] clear at his deposition in February of 1998 that he intended to rely on his privilege only during the pendency of the criminal charges.”

In the scenario described above, since the defense counsel did not attempt to comply with Faith and notify plaintiff’s counsel in advance that Smith would testify at trial, the court will not allow Smith to testify. Had defense counsel notified plaintiff’s counsel before trial that Smith was prepared to either waive or abandon his Fifth Amendment right against self incrimination, the decision may or may not be different. The ruling would be fact-specific and depend on the circumstances.

Practice Tip
When your client is confronted by the need to exercise the Fifth Amendment right against self incrimination in a civil case while a parallel criminal case is pending, consider the discovery deadline and the proposed trial date in the civil case. Notify opposing counsel in writing and by motion that your client intends to invoke his or her Fifth Amendment privilege. You should also make it clear to opposing counsel that your client will assert this privilege until the criminal matter has been resolved, which includes the appeal process, if that is a factor.

The key, as described in Faith, is that as long as your adversary has time to depose your client before trial, the discovery process will not be “seriously hampered,” and you can keep the option of having your client testify at trial.

If your troubled client waits until the eve of trial to waive his or her Fifth Amendment privilege, Maryland law would support a trial court’s decision to bar the testimony, thus invoking the so called “midnight witness rule.”


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June 6, 2013

Cross-examining the dishonest witness

I’ve encountered my share of mendacious witnesses on the stand over the years. Sometimes the witnesses have been blatant perjurers. Other times witnesses have feigned lack of memory. I’ve learned that how to deal with duplicitous witnesses depends on one’s style, the nature of the case and the facts available with which to confront the witness. Here are some tips on how to deal with the dishonest witness testifying against your client:

  • You can impeach the witness by demonstrating that the testimony is unbelievable in leading the witness to exaggerate and extend his or her false statements to the improbable;
  • You can impeach the witness by a prior inconsistent oral statement, using extrinsic evidence, i.e., calling another witness to demonstrate that the testimony of a prior witness is false;
  • You can impeach the witness by a prior inconsistent written statement; and
  • You can impeach the witness by demonstrating his or her bias.

Here are two historic illustrations of defense attorneys successfully employing some of these strategies to impeach mendacious witnesses. Consider them as you adapt your own style and method in your cases. The first example involves cross-examining a witness who feigns loss of memory: The 1820 trial of Queen Caroline, whom King George had charged with adultery.

The case involved one Teodoro Majocci, an Italian servant and purported eyewitness. If believed, his testimony was more than sufficient to establish the queen’s guilt. The great luminary of the day, Henry Brougham, later Lord Chancellor, appeared for the defense in the House of Lords. At first, Majocchi appeared immune to Brougham’s cross-examination. To each question he replied, “Non mi ricordo,” meaning, “I do not remember.” Brougham asked a series of questions to Majocchi that, if he were truly an eyewitness to wrongdoing, he would be able to answer. To each question Majocchi responded “non mi ricordo.” Among the many things to which Majocchi responded “non mi ricordo” was a question about the position of the rooms of the queen and her alleged paramour, Bergami. This was striking in that the case against the queen relied in part on the position of the queen and Bergami’s rooms, signifying closeness and ease of communication.

In closing argument, Brougham demonstrated that Majocchi’s repeated answers of “non mi ricordo” defied belief. As John Lord Campbell explained in his book, Lives of the Lord Chancellors and Keepers of the Great Seal of England, Brougham argued that Teodoro Majocchi was a witness of great importance and went on to say:

He was the first called and the last examined…There is an end, then, of innocent forgetfulness, if when I come to ask where the rest slept, he either tells me, “I do not know,” or “I do not recollect”; because he had known and must have recollected that when he presumed to say to my learned friends, “these two rooms were alone, near and connected, and others were distant and apart”: when he said that, he affirmed his recollection of the proximity of those rooms and the remoteness of the others. He swore that at first and afterward said, “I know not,” “I recollect not” and perjured himself as plainly as if he had told your Lordships one day that he saw a person and the next day he never saw him in his life.

This impeachment of the Italian servant is an example of ridiculing a perjured witness in closing argument without direct impeachment during the examination of the witness.

Now consider the cross-examination of a blatant perjurer on the witness stand: The attorney conducting the cross-examination was Weymouth Kirkland, a prominent Chicago attorney in the early 1900s who was defending an insurance company against a plaintiff claiming entitlement to funds because the policyholder had drowned after falling off a ship. As recounted by Paul Stryker in The Art of Advocacy, the defense asserted that the policyholder, Mr. Peck, did not fall from a ship and drown but rather, that he walked off the ship very much alive. In cross-examining the ship’s cook, Mr. Weymouth proceeded as follows:

Q: How long had you known Peck?

A: Fifteen years.

Q: You knew him well?

A: Yes, sir.

Q: How did you happen to see his body?

A: I looked out of the porthole.

Q: You recognized it beyond doubt as the body of Peck?

A: Yes, sir.

Q: Did you make an outcry when you saw the body?

A: No, sir.

Q: Did you ask the captain to stop the ship?

A: No, sir.

Q: What were you doing when you happened to look out of the window and saw the body?

A: I was peeling potatoes.

Q: And when the body of your old friend, Peck, floated by, you just kept on peeling potatoes?

A: Yes, sir.

During closing argument Kirkland did not argue to the jury that the cook’s testimony was false. Instead, he took a potato and knife from his pocket (you could bring knives into the courtroom in those days), rested his foot on a chair and began to peel the potato. As he did this, he said to the jury, “What ho! What have we here? Who is this floating past? As I live and breathe, if it isn’t my old friend Peck! I shall tell the captain about this in the morning. In the meantime, I must go right on peeling my potatoes.”

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May 6, 2013

What I learned from my boot camp for young trial lawyers

As a long-time trial lawyer who has spent many years advising the next generation of trial lawyers, I was buoyed by the response to last month’s Anatomy of a Trial One-Day Boot Camp for Young Trial Lawyers. When I got back home to Baltimore following the event, several participants emailed me to tell me how eager they now are to put their newly learned strategies to work trying their own cases. Keep in mind, many of the 100-plus lawyers who attended this year’s boot camp have yet to try a case. That they are still enthusiastically preparing for their first trial could not please me more.

In a day when negative press on law schools and professional prospects for graduates is ubiquitous, it’s good to know that young lawyers are still landing jobs and staying focused on what matters most in their careers: representing their clients to the best of their abilities.

It’s been nearly ten years since the ABA’s Section of Litigation, in conjunction with my Litigation Institute for Trial Training (LITT), held our first boot camp for young trial lawyers. I was pleased to see that the excitement for this annual event has not waned at all.

Last month's boot camp was held in Chicago, as part of the Section of Litigation’s annual conference. We took a different approach to the event this year -- focusing on the tragically notorious trial of Sacco and Vanzetti, two Italian immigrants who were found guilty of murder and armed robbery following a short, politically-laced trial fraught with poor lawyering and even poorer officiating. The original trial, back in 1921, took place at the height of the Red Scare. The two defendants had been branded as anarchists, which turned public opinion – as well as the jury’s – against them. This profoundly affected their trial to such an extent that we will never know whether their guilty verdict was a just one. Though this case is more than 90 years old, the lessons it offers trial lawyers are timeless.

With the Honorable Judge Marvin J. Garbis of the US District Court of Maryland presiding, participants in the boot camp were guided by some of the country’s most respected trial attorneys and judges through a mock trial of Sacco and Vanzetti today – with demonstrations of opening statements, direct examinations, cross-examination and closing arguments. Woven into the schedule were lectures by several outstanding speakers and question-and-answer sessions featuring panels of some of today’s brightest legal minds. Click here for a full list of speakers and details of the day’s events.

It is good to know that the terrible misfortune that befell Ferdinando Sacco and Bartolomeo Vanzetti nearly a century ago will not be repeated. That is, so long as our next generation of trial lawyers remains vigilant to the goal of ensuring that all their clients receive the best possible legal representation and, of course, a fair trial. If last month’s “Anatomy of a Trial” boot camp is any indication, the next generation is right on track.

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March 13, 2013

"Pleading Causes of Action in Maryland" gets an update

When Jim Archibald and I wrote Pleading Causes of Action in Maryland several years ago, our goal was to help every courtroom attorney in Maryland better analyze the strengths and weaknesses of their cases as they prepared initial pleadings in both state and federal courts. We wanted to offer straightforward, yet comprehensive advice, individually tailored to address the specifics of virtually every cause of action in Maryland.

Now, in response to public demand, we’ve brought the book even more up-to-date, with Pleading Causes of Action in Maryland, Fifth Edition, available for purchase, starting this month, through the Maryland State Bar Association. With this Fifth Edition, we not only bring the book current through December 2012 but we’ve also done our best to make the book even more comprehensive, with concise, yet individual treatment of more than 130 causes of action – including citations to over 1,700 cases, 380 sections of the Maryland Code Annotated, and 200 provisions of the Maryland Rules.

One area of extensive revision in Pleading Causes of Action in Maryland, Fifth Edition, is Section 6.19, which focuses on foreclosure proceedings. Our revisions reflect the myriad new rules and regulations created by the Maryland legislature since 2008, in response to the avalanche of foreclosure filings – and the widespread abuses – that have occurred in recent years. As the legislature is likely to continue revising foreclosure laws going forward, practitioners are advised to consult the latest statutory enactments, along with amendments to the Code of Maryland Regulations and Title 14 of the Maryland Rules.

To purchase a copy of Pleading Causes of Action in Maryland, Fifth Edition, click here or contact the Maryland State Bar Association.

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