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."

EDD Links

On December 1, 2006, the new Federal Rules of Civil Procedure dealing with EDD (electronic data discovery) will take effect. For those interested in learning more about the intricacies of e-discovery, this compilation of links on the subject is a great place to start: http://www.abanet.org/lpm/lpt/articles/slc10061.shtml.

New Federal E-Discovery Rules Effective Dec. 1, 2006

The U.S. Supreme Court has approved amendments to the Federal Rules of Civil Procedure concerning "electronically stored information." The amendments address problems associated with electronic discovery in cases involving large amounts of data and become effective on Dec. 1, 2006. The changes affect Rules 16, 26, 33, 34, 37, and 45, as well as Form 35.

No Duty to Warn on Hair Product Causing Death of Infant

The Michigan Supreme Court has ruled that the manufacturer of an "all natural" hair spray that caused an 11-month old chid to die had no duty to warn of such a danger. The Court found as a matter of law that that risk is obvious. The container did have a warning not to use it near sparks or open flames, but there was no warning not to inhale or taste the product or to keep it away from children. The majority concluded that Michigan law does not require that every possible injury be warned against. A scathing dissent proclaimed that the decision sounds the death knell for failure to warn cases in Michigan.

Top Ten Things You Don't Do As A Witness

Top Ten Things You Don't Do As A Witness
10. Don't volunteer unless you absolutely, positively know it will help your case.
9. Don't get mad.
8. Don't listen to the question.
7. Don't bring anything to the deposition unless asked to do so.
6. Don't guess.
5. Don't assume.
4. Don't fight.
3. Don't answer a question about a document unless you review it first.
2. Don't forget that everyhting you say is being taken down and will be used against you.
1. Don't lie.

Electronic Discovery Tips

Here is some suggested language for a letter requesting that electronic evidence be preserved until an electronic discovery order can be entered:

Dear _______:

In connection with the lawsuit we have recently filed, it is absolutely critical that certain evidence be preserved. In particular, please do no delete or otherwise dispose of any of the following categories of information or data until an appropriate discovery and evidence retention order can be entered by the Court:
1. Emails and all attachments thereto relating in any way to the subject matter of this litigation;
2. Metadata (information related to e-mails such as date sent, date received, subject)
3. Tapes or other media containing disaster recovery backups of e-mail servers;
4. CD-ROMs containing archives of e-mail; and
5. Personal computers, home computers, laptops, handhelds, or other electronic storage devices.

We also request that you immediately instruct all employees to cease automatic destruction of records until the company can isolate and copy the relevant material.

In addition, please send an email and a letter to key custodians, including their assistants, directing them not to delete any e-mail or documents in their personal accounts or on the “shared drives.”

Thank you for your anticipated cooperation. If you do not intend to comply with any part of this request, please notify me immediately so that appropriate motions can be filed.

Very truly yours,

Taking Out of State Depositions

This article lists the steps you should take to schedule a deposition in a different state:

1. Will the witness volutarily appear for the deposition?
2. If the case is in Federal Court, a subpeona can be served within 100 miles (as the crow flies) of the courthouse or within 100 miles of the site of the deposition meaning it can be taken anywhere in the United States. See Fed Rule of Civ Proc 45(b)(2).
3. Find out if the individual you want to depose is in a state that has a court rule like MCR 2.305(E) that permits depositions to be taken of residents of Michigan when an action is pending in another state.
4. You may need letters rogatory or a commission from state court to provide to the state court where the witness is located.

For more information, please copy and paste the following address for an article published in the Utah Bar Journal: http://www.utahbar.org/sections/litigation/html/how_to_take_an_out-of-state_de.html. Another good source of information on the topic is located at the following address: http://www.abanet.org/yld/litigation/lit101pdf/Wilkins.pdf.