Monthly Archives: June 2012
Trial Post-Mortem
If you try cases long enough, you are going to eventually lose a few. You need to look at losses as an opportunity to improve. Quite honestly you should learn more from your loses, than your victories. If your are allowed, you should speak with the jurors and see what they thought was important. You need to check the case and consider:
1. Jury Voir Dire: Was a juror biased against your case? Could you have formulated a better question to uncover this bias and possibly exclude the juror. Were there a problem with your case you could have raised in voir dire to find out who could not treat the evidence fairly?
2. Prejudicial Evidence or Arguments: Did the other side present irrelevant evidence or improper arguments? Even if your objection is sustained, it is often difficult to “unring” that bell. You may be able to head off such arguments or evidence in the future through an motion in limine excluding such evidence or argument. It might also uncover problem evidence.
3. Were There Surprises: Perhaps the opposing party hit you with evidence you missed. Next time you may be able to head off such problems by doing what your opponent would likely do in investigating the case. You may need to comprehensively collect and check medical records more carefully and prepare a medical chronology to refresh your client’s memory before questions are incorrectly answered in interrogatories or depositions. Or perhaps, there are other lawsuits, claims or even criminal convictions your client failed to tell you about in advance of discovery and their deposition. You may want to hire a private investigator to do a preliminary background check of your client or just do a Google search of your client’s name to see what you might uncover. You may want your client to give you access to their social media sites to check for potential problems. Better yet, you can educate your client early on about the importance of being completely honest with you. There are few problems that cannot be dealt with if you know about them. It’s the problems you don’t know about that can kill you. I always tell a client that: “You don’t want to take a good case, try to make it a great case (through exaggeration or lying) and turn it into a bad case.”
4. Witness Preparation: Did you adequately prepare your witnesses or client to testify. Good testimony requires that you and your client be on the same page. You need to adequately prepare your client or witness for any landmines that exist and perhaps bring up the problems yourself in voir dire, opening and/or on direct examination to blunt the damaging evidence’s impact. Video-taping a mock testimony session and allowing your client or witness to critique their own performance can work wonders as well.
5. Additional Evidence: Was there a witness you needed to call? Lay-medical witnesses to paint a before and after picture can go a long way in corroborating your client’s testimony that they were injured in this incident and not from some other event or condition. Was there an expert whose testimony might have covered a gap or question in your case? Could a photograph, diagram or model have made your presentation clearer or answered a juror’s doubt?
6. Jury Instructions: Were there jury instructions needed to address points of law pivotal to your case and the jury’s understanding of those issues? Don’t take the easy way out and rely simply on pattern jury instructions. Review the case-law and formulate your on instructions on nuanced points of law that are difficult for the jury to understand and apply to your case.
7. Strategy: Was there something you could have handled better? Was there a better analogy or argument you could have used to make your point or address your weaknesses? Was your overall view of the case cohesive and persuasive. Was your order of witnesses correct? There are a number of great resources available to you from books about famous trials, closing arguments and trial advocacy. Don’t reinvent the wheel. Learn from other’s experience what works and what doesn’t. Seek out a mentor and pick their brain. See my earlier post on Fireside Reading for the Trial Attorney.
I hope the thoughts outline above help you in critiquing your “failures” and turning them into an opportunity for improvement and growth as an advocate.
Litigation Against an Organization: Why you need to do a Rule 30(B)(6) deposition.
If you are suing an organization, it is important that you familiarize yourself with the provisions of Rule 30(b)(6). Rule of Procedure 30(b)(6) provides in pertinent part:
Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.
The organization (not you) has the obligation of designating the person or persons needed to adequately answer the questions posed in the various designated areas you wish to ask questions. You as the deposing party have the burden of meeting the “reasonable particularity” requirement of adequately designating the subject areas of questioning. The statements given by the person(s) designated by the organization bind the organization as an admission of a party-opponent.
This is not necessarily the case when a statement is given by a low-level employee who is not a “member of the limited liability company” or officer/director of a corporate organization since their statements only bind the organization if they are:
1) made within the scope of their authority and
2) the person is still employed and has a relationship with the organization.
Under Rule of Evidence 801(d)(2), “non-hearsay” for the “admission of a party-opponent” is defined as follows:
(d) Statements which are not hearsay. A statement is not hearsay if –
* * *
(2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the party’s agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
A Rule 30(b)(6) declarant/deponent’s answers to questions during the deposition are considered a “statement by a person authorized by the party to make a statement about the subject“. The organization can only authorize such a statement if the area of questioning has been identified in the deposition notice. The trick is to make sure your designation of the areas of questioning is specific enough to cover the questions you wish to pursue during the deposition. Otherwise, the organization is free to argue that they were not authorized to make the statement and bind the organization. One caveat to this point, is that the organization likely has a duty to raise the objection at the time of the deposition if the problem could have been obviated at the time of the deposition by making a clarification in the question. Rule 32(d)(3)(A) states that “[a]n objection to a deponent’s competence—or to the competence, relevance, or materiality of testimony—is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.”
If the opposing party designates the wrong person or fails to prepare them they risk possible discovery sanctions and ill-considered and ill-conceived answers to critical questions in the litigation. The burden is on the organization to properly prepare and name as many people needed to answer your questions. It is kind of like obtaining requests for admissions from your opponent on the fly. It can be very powerful tool you can use to box in your opponent.
The Barrister's Toolbox 