October 13, 2014

Is it possible to use too many adverbs in court?

Do you knowingly or unwittingly use an abundance of adverbs in your legal briefs and prepared statements for trial? According to the Wall Street Journal last week, you likely do. Wall Street Journal reporter Jacob Gershman, in a clever front-page article titled “Why Adverbs, Maligned by Many, Flourish in the American Legal System,” (October 8, 2014) points out that though many writers of prose eschew the adverb, it is ubiquitous in courtrooms around the country.

Why would a part of speech the Wall Street Journal describes as “the grammatical equivalent of cheap cologne” nonetheless play a role in many court cases? Take by way of explanation a trial lawyer representing the victim of a shooting in a bar. The plaintiff’s lawyer could stand before the jury and tell them that the defendant fired a gun in the bar, or she could tell the jury that the defendant indiscriminately fired a gun in the bar. Which version comes across as a stronger statement about the triggerman’s actions?

When we are told that someone did something maliciously or recklessly or intentionally, we have a more vivid impression of how something happened and that impacts how we will react to it. In the example above, hearing the gunman was indiscriminant in firing the gun will likely lead the jury to feel the defendant does not have a high regard for human life, which may be important in building the plaintiff’s case against him.

Apparently even the adverb-opposed see the importance of adverbs in court. The Wall Street Journal article cites an appeals court judge in Utah who wrote an essay last year explaining that though he detested the use of adverbs for many years, he now appreciates them as a “key to nuance.” The article points out that even the U.S. Supreme Court has focused on adverbs in cases: In the 2009 case, Flores-Figueroa v. U.S., the high court’s decision hinged on the word knowingly in a relevant government statute.

The article also references a recent case involving the Internal Revenue Service freezing the assets of a former Pennsylvania state senator based on a statute in tax law that allows the government to freeze assets when someone is working quickly to hide his or her wealth. The court in this case found that the senator had not been working quickly to hide his wealth, but rather, he had done so over the course of several years, and that the statute did not apply.

Regardless, strong adverbs should only be one of many tools a trial lawyer uses in court to create an argument that will sway the judge or jury. Effective speech is not about picking the most extreme words or the most dramatic but the most apt. It may sway a jury more to say someone was “heartbroken” rather than “sad,” so when the situation warrants it, by all means use “heartbroken.” Depending on the circumstances though, “sad” may be more appropriate. For example, a person may be sad that the newspaper wasn’t on his doorstep as expected, but “heartbroken?” Such overstatement will likely provoke a “give me a break” response from your listeners and diminish your credibility.

The key is to be cognizant of your word choices. Speak vividly and capture the imagination of your audience. Your word choices should enhance your argument, not detract from it. So feel free to include adverbs where they are warranted and exclude them where they are not. After all, consciously using the right words to make your points may make all the difference to your case.

Bookmark and Share

May 6, 2014

Would Wyatt Earp have been indicted today?

More than 120 years ago, the coroner’s inquest into “Wild West” lawman Wyatt Earp ended with no criminal charges filed. Earp walked away scot free in the infamous O.K. Corral gunfight that only lasted 30 seconds, but is remembered as the day “when blood flowed like water,” according to the next day’s newspaper. While that gunfight and the incidents leading up to it have fascinated history buffs for more than a century, there was never a criminal or civil trial instituted against Wyatt Earp. The gunfight and aftermath leading to no prosecution has long intrigued trial lawyers: How did Wyatt Earp walk away without indictment? Did the prosecution really play the cards at their disposal, or was Mr. Earp’s defense that good? What if here had been a civil trial such as a wrongful death case instituted by family members of those mortally wounded, like Tom McLaury?

At the eighth annual Litigation Institute for Trial Training program, or LITT -- also known as a boot camp for young lawyers – we explored the nuances of an imaginary wrongful-death trial. Our special guest was Wyatt Earp himself, or rather, a descendant of the original Wyatt Earp, who was named after his famous ancestor. Our case was based on the testimony presented at the original investigation of the gunfight at the O.K. Corral. The material we used was created by attorney Jeff Willis of Phoenix, who helped assist in getting the original Wyatt Earp’s descendant to portray his namesake on the witness stand.

I created the LITT program eight years ago, in conjunction with the ABA Section of Litigation, to teach the basics of courtroom advocacy to young lawyers, and more importantly, to inspire them to seek further learning and study of trial, as well as arbitration advocacy. Currently, the LITT program is co-chaired by Dallas attorney Michael Lynn and me, and it was Michael who suggested we use the Wyatt Earp trial as our historical case of the day. We had presented a similar program in Dallas the year before and that event had been presented, to wide approval, before a packed house of 500 young lawyers and law students.

At the LITT program in Phoenix last month, Mr. Earp was joined by some of the leading trial lawyers in the country, many of who gave demonstrations of each facet of a trial, from opening statement, to direct and cross examination, to closing argument. A brochure with details of the day’s activities and a list of the accomplished attorneys who participated can be found on the ABA Litigation Section website, or by clicking here.

I won’t tell you whether or not the legal proceedings surrounding the original Wyatt Earp would have ended any differently had he appeared before the “jury” of this year’s LITT program rather than the justice of the peace who presided over the coroner’s inquest, but I can tell you the original Wyatt Earp would have been proud of his descendant’s convincing performance.

Bookmark and Share

April 22, 2014

Tears on the stand in Pistorius trial: Provoking sympathy or skepticism?

Over the weekend, Sarah Lyall of the New York Times posted an interesting story on the Oscar Pistorius murder trial in Pretoria. It seems the famous South African runner with prosthetic legs has been something of a basket case while testifying in his own defense. “He retched. He cried, then sobbed, then grew hysterical,” writes Lyall. “It got so bad that at times the judge Thokozile Matilda Masipa, had to adjourn the court while Mr. Pistorius regained his equilibrium.”

What effect might this outpouring have on the outcome of the trial? It’s impossible to read the mind of the decision maker – in this case, the judge, as South Africa doesn’t have a jury system like ours – but I am generally wary of expressing emotions so ardently in court. And not because the emotional content of argument is unimportant. On the contrary, because emotion is so crucial, it must be handled with care.

I never forget this Cicero quote: “Mankind makes far more determinations through hatred, or love, or desire, or anger, or grief, or joy, or hope, or fear, or error, or some other affection of mind, than from regard to truth, or any settled maxim, or principle of right, or judicial form, or adherence to the laws.”

Rhetoricians consistently agree that emotion plays an essential role in persuasion, and psychologists teach that people usually make decisions by emotion and then validate them by logic.

Even judges who must make logical decisions, are no automatons who merely plug facts into a legal framework. Indeed, the presumed dichotomy between reason and emotions is in some respects misleading. Emotion, in fact, provides motive and meaning for even our most “rational” decisions.

That’s why I encourage lawyers to consider the emotional content of their overall cases. At every stage of the trial, emotion plays a role. But if emotion is overdone – if quiet tears become sobs, if frustration blows into a tantrum – listeners may find it difficult to relate.

In the Pistorius case, according to Lyall’s story, observers of the trial are wondering whether the defendant is being sincere or acting. And if his anguish on the stand is sincere, what is its source?

Ideally, when a defendant takes the stand, the emotional content of his claims will support the logic of the overall argument. In this case, his torment seems to be eclipsing the argument altogether and causing people to question his sincerity.

To some extent, judges and juries will question the sincerity of all witnesses. That’s part of the job. Still, defense lawyers should strive to present testimony that compels the audience to set aside its skepticism, at least for awhile.

Bookmark and Share

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.

Bookmark and Share

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.

Bookmark and Share

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)

Bookmark and Share

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).

Bookmark and Share

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.

Bookmark and Share

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" »

Bookmark and Share

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.

Bookmark and Share

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.”

Bookmark and Share

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.”


Bookmark and Share