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.