"I Don't Recall"

It's easy to get sloppy when asking questions, but there's a big difference between asking a witness whether "they recall" something and asking whether it happened. Likewise, if a witness starts answering questions by saying that she "does not recall." follow up by asking, "So you can not say whether the light was red or green, is that correct?" If someone does not recall or you ask them if they remember something rather than whether it did or did not happen, you expose yourself to having that witness' recollection refreshed later on. It's a difference that matters.

Junk Science Checklist: Seven Factors Courts Must Consider in Michigan

In Michigan, trial courts are required to consider seven factors in assessing the admissibility of expert testimony:

1. Whether the opinion and its basis have been subjected to scientific
testing and replication.
2. Whether the opinion and its basis have been subjected to peer review
publication.
3. The existence and maintenance of generally accepted standards
governing the application and interpretation of a methodology or technique and
whether the opinion and its basis are consistent with those standards.
4. The known or potential error rate of the opinion and its basis.
5. The degree to which the opinion and its basis are generally accepted
within the relevant expert community.
6. Whether the basis for the opinion is reliable and whether experts in that
field would rely on the same basis to reach the type of opinion being proffered.
7. Whether the opinion or methodology is relied upon by experts outside
of the context of litigation.

MCL 600.2955(1). See also MRE 702.

Mastering Blind Cross-Examination

Most litigators fear cross examining a witness they have not deposed. Fear not. In an article entitled "Mastering Blind Cross-Examination," appearing in the ABA's "Litigation News," Mark A. Neubauer writes:

"The easiest way to control a witness is through the use of exhibits. Accordingly, use your documents to weave your testimony on blind cross-examination. What is the witness to do? Deny that he wrote the document? Deny that the document she wrote is a true statement? It almost doesn’t matter what the witness’s response is. What does matter is getting the witness’s own words in writing into evidence before the judge or jury.

For example:

Q: You wrote this letter, didn’t you?
A: Yes.
Q: And when you wrote that “I cannot justify paying so much for senior staff when we are missing our budget,” you believed that to be a true statement, didn’t you?

What is the witness to say? He lied when he wrote it? By reading the statement into the record, you are driving home its content in a far more effective way than by just authenticating the document."

There are a number of other very helpful tips in this piece, including this admonition:

"So throw away those deposition transcripts. Save your clients thousands of dollars of reporters’ fees. Instead, cross-examine your witnesses the old-fashioned way—blindly, which, like Lady Justice herself, isn’t really so blind after all."

Over 1,000 Litigation Articles

Litilaw is a legal article research portal that has collected over 1,000 recent articles of interest to litigators. All articles are full-text, written by lawyers and have been published as part of continuing legal education (CLE) seminars, in legal journals, or comparable forums.

Famous Trials

Professor Doug Linder, at the University of Missouri-Kansas City (UMKC) School of Law, has compiled an amazing array of materials involving some of the most famous trials in history. From the "Trial of Socrates" in 399 BC to the "Lenny Bruce Obscenity Trial" in 1964 to the 2006 "Trial of Zacarias Moussaoui" of 9/11 fame, everything from trial exhibits to transcripts to photographs are just a click away. Check it out.

Caps on Non-Economic Damages are Unconstitutional in Georgia and Constitutional in Michigan?

On Feb. 9, 2009, a lower court found Georgia's caps on non-economic damages in medical malpractice cases unconstitutional on three grounds:

(1) “[I]t invades the right to a jury trial” guaranteed by the Georgia Constitution “by usurping one of the fact-finding responsibilities of the jury;”

(2) The statute violates the Separation of Powers Doctrine by “encroach[ing] upon the judiciary’s constitutional right and prerogative to determine whether a jury’s assessment of damages is either too excessive or too inadequate within the meaning of the law;” and

(3) "[I]t violates the Equal Protection Clause of the Georgia Constitution by differentially and dramatically impacting those most seriously injured, low-income individuals."

Nestlehutt v. Atlanta Oculoplastic Surgery, P.C., d/b/a Oculus, Fulton County State Court, Civil Action File No. 2007EV002223-J (Feb. 9, 2009).

In 2004, the Michigan Supreme Court found tort reform provisions applicable to auto insurance constitution. It said:

"Damage caps are constitutional in causes of action springing out of the common law because the Legislature has the power under our Constitution to abolish or modify nonvested, common-law rights and remedies." The went on to say that "economic legislation, such as the measure we deal with today, has consistently been held to be an issue for the political process, not the courts. * * * It is into this mainstream that we again steer our economic regulation jurisprudence."

Phillips v. Mirac, Inc., 470 Mich 415 (2004). Still, only four Justices signed the majority opinion, and one of those Justices is no longer on the bench.

The Document Speaks For Itself, But I Can't Hear It

You've all heard this one, "Objection, the document speaks for itself." But is it a legitimate objection? Not if it's being used to keep your witness from reading from a document already admitted into evidence. Remember, reading from a document in evidence is one way of publishing the evidence to the jury. After all, once admitted the jury is entitled to read the exhibit. A judge will stop you if you misread or mischaracterize the contents, but otherwise there is nothing wrong with reading from a document. See, e.g., Miller v. Holzman, Civil No. 95-1231, at 4-5 (D.D.C. 2006) and James W. McElhaney, "The Cleveland Exception to the Hearsay Rule and Other Courtroom Oddities," 1 Rev. of Litig. 93, 96-99 (1980).

Offering Exhibits at Trial

Some judges, prodded by your opponent, can make introducing exhibits into evidence a painful and embarrasing experience. The basics are outlined in this excellent primer published a few years ago by the Utah State Bar: "Trial Basics: Using Exhibits," by Francis J. Carney.

Experts in State and Federal Courts -- FRE 703 vs MRE 703

For those that practice in both state and federal courts, it is worth reminding litigators that the Federal Rule of Evidence governing the circumstances under which experts' opinions are admissible and Michigan's corresponding rule are significantly different. FRE 703 provides that the "facts or data" relied upon by an expert need NOT be admissible. Since 2003, however, MRE 703 says just the opposite, namely that the opinion of an expert must be based on facts or data that are not only admissible, but also actually admitted into evidence. LITIGATORS BEWARE!

U.S. Supreme Court Rules That FDA Approval Does Not Shield Drug Maker

The United States Supreme Court has upheld a $6.7 million verdict for a woman who had to have her arm amputated after an anti-nausea drug hit an artery and caused gangrene. Even though the drug carried a warning of this rare complication and the FDA approved not only the drug but also the warning, Justice John Paul Stevens, writing for the majority, said that the drug maker could "unilaterally strengthen its warning." Click here to read the opinion.

Got a Car Accident Case? Use Google Earth!

Several legal blogs have mentioned attorneys using Google Earth to show jurors the scene of the accident. It costs nothing and is an outstanding resource. Download it from this link and try it: http://earth.google.com

Michigan's Indexed Caps on Noneconomic Damages Increase to $401,500 & $717,000

The Michigan Department of Treasury has announced that the new caps on noneconomic damages in products liability cases where the product did not cause either death or permanent loss of a vital bodily function for 2009 is $401,500. The indexed cap in cases involving death or permanent loss of a vital bodily function is now $717,000.

The Top 5 Rules for Cross-Examination

One of my favorite legal blogs or blawgs -- http://www.illinoistrialpractice.com -- recently posted these five rules from Scott Turow to follow when cross-examining witnesses:

1. Never ask a question to which you do not know the answer--unless it doesn't matter, or you have nowhere else to go.

2. Always listen to a witness's answer before asking your next question.

3. Never ask the one question too many that will allow the witness to explain away a damaging answer he's already given.

4. Forget Perry Mason. The purpose of cross is not to win the trial at once, so much as lay the foundation for closing argument, or for the testimony of other witnesses.

5. Know when you've accomplished enough and sit down.

Depositions in Michigan Become More Civil in 2009

MCR 2.306 has been amended to provide that an "objection during a deposition must be stated concisely in a civil and nonsuggestive manner." According to the official comments, the change was made to prohibit the practice of "speaking objections" designed to "instruct the witness." Also new is the requirement that it is no longer appropriate to confer with a witness, even a client, while a question is pending, except to talk about the assertion of a privilege or other legal protection like the 5th Amendment. Finally, the amended deposition rules now also provide for sanctions, including attorney fees, "of a person impedes, delays, or frustrates the fair examination of a witness or otherwise violates the rule."