Davis v. Happyland Toy Co.

Outline:

• In a wrongful death action, both the deceased and the surviving spouse or personal representative are considered “parties” for all evidentiary purposes.
• Whenever the defendant offers statements of either the decedent or the spouse, such statements qualify as an opposing party’s statement and are not hearsay.
• A surviving spouse in a wrongful death action is not a party for purposes of establishing harm or injury.
• It is not relevant and may be prejudicial that a surviving spouse suffered as a result of the death
• Evidence that is admissible for other purposes is not rendered inadmissible because it provides evidence that a surviving spouse suffered.

Notes: It’s important for a couple of purposes to understand who the “parties” are to a case. Generally that just refers to who is suing and who is being sued, and it’s important because it establishes who is most directly affected, which is relevant for answering a couple of important questions. As simple as that sounds in theory, it gets complicated in practice. In this year’s case, for instance, Andy Allen is suing on behalf of Lee Allen, who can’t sue because s/he’s dead. What’s Andy Allen’s relationship to the case then? Is s/he a party because s/he’s the one suing? Or isn’t s/he, because s/he’s not suing in her own name, but on behalf of another’s estate? This case law answers those questions, essentially by saying “it depends.” Surviving spouses like Andy Allen are parties for evidentiary purposes: basically, anytime when you’re evaluating whether or not evidence can come in under the Midlands Rules of Evidence, Andy Allen is a party. The case law specifies that this is true in particular for the party-opponent hearsay exemption, so anything Andy Allen said that the defense wants to bring in will probably get past hearsay. Surviving spouses like Andy Allen are not parties for purposes of establishing harm. If you go back and look at the selections from the Midlands Civil Code we’re given, the third thing the plaintiff has to prove under Rule 1200 is that the plaintiff suffered injury. Injuries Andy Allen suffered don’t count towards proving that, because this case says s/he isn’t a party. Only injuries Lee Allen suffered matter.

Case Law Bonus Post: Karan v Baboons, Inc

Notes: The vast majority of, if not all of, college civil cases (and certainly this year’s) are “bifurcated” (separated) into liability and damages phases, and we only try the liability phase. In the liability phase, the goal is to establish whether or not the defendant owes the plaintiff money. “Damages” is another term for the harms the plaintiff suffered (examples of which include pain, suffering, and death). It’s also used to refer to the money paid in compensation for such harm. If there is a damages phase, then its been determined that the defendant does owe the plaintiff money and the question being decided is how much. This case law essentially beefs up the relevance and waste-of-time objections with respect to evidence that goes mostly towards the magnitude of damages. The plaintiff is allowed to introduce evidence to establish the existence of damages, but not to wax endlessly on about how great those damages were. In this case, for instance, while establishing that Lee Allen died would be relevant to establish damages, spending a great length of time establishing how painful his/her death likely was probably wouldn’t be. This case law can be brought out to support a relevance objection to such testimony.

Case Law Bonus Post: Thomas v Davis

Outline:

• The purpose of pleadings is to:
• Frame the issues for trial
• Permit the parties to frame their presentations accordingly
• It is inappropriate for a party:
• which has alleged or denied something in its complaint or answer
• to seek to prevent its adversary from presenting otherwise admissible evidence that relates to that thing
• by asserting that it is no longer interested in alleging or contesting that particular thing.
• Parties may choose which evidence they wish to present and which arguments they wish to emphasize at trial

Notes: This case eliminates teams’ ability to pull a particular trick, which works like this: often in Mock Trial there are several points that are disputed in the case. Let’s take an example from State v. Dawson, the 2011-2012 college case. The defendant was charged with DUI and murder; the prosecution had to prepare its case with an eye to proving both of those charges. Without this case law, the defense could have shown up and objected to relevance to all evidence that went to the DUI and not the murder, saying that they were willing to concede the DUI now, so disputing it was no longer relevant. That’s a bad legal trick but a very handy Mock Trial one, since it could cripple entire witnesses and require on-the-fly substantial reworking of closings. This case law forbids that tactic. The complaint and the answer, included in the case materials, set the standard for what is and isn’t relevant, not what the parties concede or contest at trial.

Case Law Bonus Post: Tarot Readers Association of Midlands v. Merrell Dow

Outline:

• In assessing reliability under Davis v Adams, judges should consider, among other factors:
• Whether the theory or technique has been or can be tested
• Whether it has been subjected to peer review and publication
• Whether it has a known error rate
• Whether it has gained widespread acceptance within the field
• These factors are not dispositive
• Reliability assessments must be made based on the totality of the circumstances
• The proponent of the expert testimony must prove reliability by a preponderance of the evidence.

Notes: This case hearkens back to Davis v. Adams, clarifying the meaning of “reliable” as used in that case. For an explanation of the meaning of “preponderance of the evidence,” see Filteau v. Wanek. Despite all the concrete-sounding terminology used in the case, notice how vague the final conclusion is. Judges should assess reliability based on the totality of the circumstances- basically, this case just instructs judges to look at all of the factual circumstances surrounding an expert’s testimony to assess whether or not it is reliable. That’s a reasonable principle to follow, but it doesn’t give us a clear, solid outline for what’s involved in making a reliability assessment. One of the ways you’ll often see this case misused is opposing counsel will argue as if the factors it lists as suggestions (like widespread acceptance in the field) are in fact requirements, and because you haven’t specifically addressed whether your expert’s method is peer-reviewed his conclusions are inadmissible. Correct that assumption whenever you see it, reminding the judge that the factors this case law lists are neither dispositive (conclude the issue) or exhaustive (covering all the possible factors).

Case Law Bonus Post: Richards v Mississippi BBQ

Notes: Much like Coburn Camera Crew v. Ellicott City, this case ends a skirting-the-rules trick that used to be deployed in college Mock Trial. Rule 703 essentially tells us that an expert’s conclusions can be admissible even if the data underlying them is not. Quite often in college Mock Trial, the data underlying an expert’s conclusion is hearsay. You used to be able to put that hearsay in via Rule 703, simply by having the expert say “I concluded [hearsay content]” instead of “I was told [hearsay content].” This case ends that option, explicitly forbidding experts from being “conduits who merely repeat what they are told.” In using this case law to prevent someone from using an expert to bring in hearsay through the “I concluded [hearsay content]” trick, it is probably best to still begin with a hearsay objection. If they then use Rule 703 to excuse the hearsay, counter with an argument from this case law. If you’re on the other side of that argument, being illegitimately accused of bringing in hearsay when you’re bringing in an expert conclusion, your strongest argumentative strategy will be to point out the ways in which your expert is processing his data- how he isn’t just reciting hearsay but adding something to the hearsay which may in fact underlie his conclusions.

Case Law Bonus Post: Coburn Camera Crew v. Ellicott City & Davis v. Adams

Coburn Camera Crew v. Ellicott City
Notes: A brief college mock trial history lesson is in order: there used to be a fun trick you could play with character evidence. The main character evidence rule, Rule 404, references “person,” like this case law indicates. And it used to be that nothing in the case materials made it clear that corporations were people, so you could enter character evidence more or less freely if you could successfully argue that corporations and businesses weren’t people and couldn’t have character traits. This case law forbids that trick, making clear that all the character evidence rules apply to businesses as well as people. Nothing in this case law is especially distinct from the character evidence rule, so if you understand that rule you understand this case law. It may be worth noting that the language of the second sentence- “businesses sued for negligence or recklessness generally may not defend themselves on the grounds that they acted safely with respect to other situations and activities that are separate from the case at hand”- is a more explicit forbidding of that tactic than is found in the Rules of Evidence, and could potentially be used aggressively to exclude evidence the actual character evidence rules would be unclear on. Clear examples of that possibility from this year’s case do not come to mind, however.

Davis v. Adams
Notes: Rule 702, as you probably know, describes the foundation necessary for an expert witness to testify to his conclusions. This case law in effect raises that standard: you have to not only persuade the judge that the proper foundation for the testimony has been laid, but that the testimony will be reliable. How exactly that’s done is clarified by Tarot Readers Association of Midlands v. Merrell Dow; suffice it to say that standard foundational description of the techniques your expert used and the data they relied upon should give you sufficient argumentative fodder to meet this standard.

Case Law Bonus Post: Riley v Jones & Jeff v Wario's Toolkit

Riley v. Jones
Notes: This ruling essentially gives us a shortcut for applying Filteau in the particular situation of determining who wrote an email. A restatement of the first sentence would be: the fact that an email is listed as from an address that belongs to a particular person allows us to assume that the email was sent by that person in order to determine its admissibility, absent reason to think it was sent by someone else. Presumably we could’ve gotten to that conclusion if we’d worked those facts (an email from an address attributed to someone) through the logic of Filteau, but this case law saves us that trouble.

Jeff v. Wario’s Toolkit
Notes: This case law is very brief but very important, because it makes an important clarification to what the plaintiff is trying to do in a civil case, and what the defense is trying to do when they use an affirmative defense. You probably already know that the plaintiff has to prove their case. That might sound very black and white, but the truth is proof comes in a variety of degrees. The question of “how sure do we have to be?” is answered by a legal concept called the ‘burden of proof’, which tells us how sure we have to be in different kinds of cases. Here we have to have a “preponderance of the evidence.” This case law tells us that means it must be proved that all elements are more likely than not true. That way of putting it is usually rephrased to use probabilities: the plaintiff has to prove that each element of their claim has a greater than 50% chance of being true. The defense must do the same for their affirmative defense claims.

Case Law Bonus Post: Filteau v. Wanek

Outline:

• The application of various rules of evidence in a particular situation will sometimes turn on the identity of the person making a statement.
• If the proponent of the statement:
• Produces evidence that would permit a reasonable jury to find
• By a preponderance of the evidence
• That a given person made a particular statement
• The court must assume the statement was made by that person for purposes of assessing its admissibility.

Notes: There’s a division in legal practice between questions of fact and questions of law. The judge is the “trier of law:” they have the authority to decide questions of law. In jury trials, the jury is the “trier of fact:” they’re supposed to resolve factual questions. Objection arguments are always posing questions of law, which the judge is supposed to resolve, but sometimes that requires solving questions of fact. If, for instance, you’re using the party-opponent exemption to hearsay, we might have to settle a question of fact if it’s unclear who uttered the statement. This case law explains how to solve that problem when the issue is the identity of the person making a statement. The “proponent of the statement” (the person trying to enter it into evidence) has to persuade the judge that a reasonable jury could find by a preponderance of the evidence that the declarant is who they say it is. A preponderance of the evidence is the same burden of proof used for civil cases overall, and essentially means that the assertion being proved has a greater than fifty percent chance of being true, given the evidence. Notice that the proponent of the statement doesn’t actually have to prove the identity of the speaker by a preponderance of the evidence. They have to persuade the judge that a reasonable jury could conclude that, a slightly easier thing to do. If a judge does not personally believe it’s been proven by a preponderance of the evidence, but does think a jury could find that, the proponent of the statement has succeeded.

Case Law Bonus Post: Vir v. Londo Manufacturing Co.

Outline:

• A corporation is generally charged with knowledge of any facts learned by its agents within the scope of their employment.
• This is especially true in circumstances where the agent:
• In light of his or her role at and duties to the corporation,
• Ought and would reasonably be expected to act upon those facts or communicate his or knowledge of the facts to others at the corporation.
• This rule applies regardless of whether the agent did, in fact, communicate the information to others.

Notes: It probably isn’t immediately obvious how this rule matters for the case this year. Consider what’s happening in this year’s case, though: a corporation is being sued over the actions of its employees. There’s gap in the logic there: how can we hold one entity (the corporation) accountable for what might have been the rogue actions of only part of its employee base? This case helps close that gap, creating a rule that says corporations can be held accountable for what its employees know in the course of their job. That’s especially true, the rule goes on to say, when the employee would be expected to do something with that knowledge because of their job, whether or not they actually did so. This case could be used to argue that, for instance, everything Angel Duncan knew can still be held against the corporation, even though he didn’t communicate all of it to more responsible parties like Hathaway. That might not seem fair: we shouldn’t hold Hathaway accountable for information he didn’t know about. We’re not actually holding Hathaway personally responsible, though; we’re holding the corporation responsible, and the corporation includes both Hathaway and Duncan.

Case Law Bonus Post: Duncan v. Kendall & Keith v. Mack

Duncan v. Kendall
Notes: This one should be nearly as clear as it is short: the analysis for determining whether or not a plaintiff was reckless is exactly the same as the analysis for determining whether or not a defendant’s conduct was reckless. The defense, in using an affirmative defense, is held to the same standard as the plaintiff is in proving their own case. It’s really that simple.

Keith v. Mack
Outline:

• The basis of the assumption of risk defense is the plaintiff’s voluntary consent to:
• Accept the risk and
• Look out for the plaintiff’s own well-being
• The assumption of risk affirmative defense requires a showing of actual, subjective awareness on the part of the plaintiff:
• A plaintiff does not assume a risk arising out of the defendant’s conduct unless the plaintiff:
• Actually knows of the existence of the risk and
• Appreciates its unreasonable character.

Notes: This case explicates the second affirmative defense described in Jackson. It reiterates the main description of the affirmative defense laid out in Jackson, but the big thing it explains is what exactly the defendant has to prove in order to prove that the plaintiff assumed a risk. Referring back to Motown Car Company v. Mink can clarify the point that they’re making here. In Motown, it was established that the plaintiff doesn’t have to prove that the defendant consciously knew their actions were reckless, merely that they “should have known” their actions were reckless. Keith is very different. It requires the defense to prove that the plaintiff had “actual, subjective awareness.” The defense needs to be able to show that this particular person really did know about the risk they were assuming- not just that a reasonable person would have known, or that this plaintiff could have known. Further, they need to show not only that the plaintiff knew about the risk but that the plaintiff “appreciated its unreasonable character.” It’s not precisely clear what proving that appreciation looks like, but presumably there would need to be evidence that the plaintiff understood the probability of harm, and/or the magnitude of the harm involved.

Objection Dialogue Examples: Example Two, Part II

Last time, we looked at an objection dialogue in which the judge played a very active role and analyzed how that affected the arguments and decisions made. I’m continuing that analysis this week, focusing on how the three key aspects of objections- the facts, the law, and their relationship- play out in that dialogue. I’ve put the dialogue text here again for reference.

1. Opposing Counsel: “Objection, Your Honor, Improper Character Evidence.”
2. You: “Your Honor, may I respond?” [judge nods] “This evidence falls under an exception to the Improper Character Evidence rule because it goes to the character of the witness for truthfulness or untruthfulness. The witness’s past lies give us reason to believe him untruthful.”
3. Judge: “What exception is that, Counsel?”
4. You: “Your Honor, rule 608(b) provides that specific instances of conduct of a witness may be inquired into on cross examination if probative of truthfulness of the witness.”
5. Opposing counsel: “Your Honor, may I respond?”
6. Judge: “One moment.” [finds rule in the provided copy of the Rules] “Counsel, this rule indicates that specific instances of conduct may not be proved by extrinsic evidence.”
7. You: “Your Honor, may I respond?” [judge nods] [reading from your copy] “Your Honor, the rule goes on to state that such incidents may be inquired into on cross-examination if probative of the witness’s truthfulness or untruthfulness.”
8. Judge: “‘In the discretion of the court.’ And I’m not convinced of the value of this line of questioning- you’re asking about one incident far removed from the events of this trial. How is this valuable for us today?”
9. You: “Your Honor, it is valuable for the jury to be able to assess the credibility of the witness in his testimony today, and his truthful character or lack thereof affects his credibility. His past lies demonstrate his untruthful character, and that’s valuable in assessing his credibility.”
10. Judge: “I’m not persuaded that the incident you’re exploring affects his credibility.”
11. You: “Your Honor, may I respond?” [judge nods] “Your Honor, the incident I’m referring to isn’t an isolated occurrence. This line of questioning provides evidence about a lie in furtherance of a systematic and deceptive violation of serious promises, not unlike the ones he made today. That is valuable information to have in evaluating his credibility.”
12. Judge [to opposing counsel]: “Response?”
13. Opposing Counsel: “Yes, Your Honor. Counsel’s comparison between the witness’s wedding vows and the promise to tell the truth that he made today is specious: the emotional and cultural context of an affair is completely different than the context of testifying in court. We have no reason to believe the circumstances of this past lie make it likely that he’ll lie today. The fact is that opposing counsel is delving into an isolated incident that occurred years ago. It’s not useful to us today.”
14. You: “Your Honor, may I respond?” [judge nods]. “The fact that the emotional context leading to an affair is different from the emotional context surrounding court testimony is irrelevant to the argument being made here. The issue is whether that lie significantly affects his credibility today, and it does. The simple fact that he’s willing to lie says something important about his credibility. His willingness to lie to those closest to him says something important about his credibility. And his willingness to lie in violation of a promise says something very significant about his credibility.”

Again, we’re focusing here on the facts, the law, and the relationship between the two. In the first part of the objection, statements of the law are easy to identify: you explain very briefly the exception you’re using in your initial response, and then go on to quote the precise rule in (4) and (7). Keeping the law clear gets much harder after the judge asks you to explain the “value” of the evidence. You’re no longer in a realm governed by an actual rule; the judge’s logic isn’t operating in clear alignment with the rules, and you need to win the objection argument using their logic. You’re now responsible for relating the evidence to the judge’s idea of what valuable evidence is, without really knowing what that idea is. Remember that as similar as this part of the argument becomes to a relevance argument, it isn’t one. Treating it exactly like one is liable to lead you astray. You can explain beautifully why this evidence makes some fact useful for the resolution of the action more or less probable, but if that isn’t the concept of “value” the judge has in mind, your argument doesn’t do any good. Worse would be drawing on the concept that relevance is a low bar to suggest that this “value” issue is relatively easily bypassed. The judge probably doesn’t think this is an easy point to get past; they wouldn’t have brought it up if they did. Acting as if it is misses their point and is likely to make it sound as if your evidence isn’t particularly valuable. So what do you do instead? You make an educated guess. In (9), you stated an uncontroversial principle that might accurately address the judge’s idea of “valuable” evidence when you say “it is valuable for the jury to be able to assess the credibility of the witness in his testimony today.” Notice how direct your word choice is. You don’t make it about relevance, or any other synonym you could substitute: the judge asked how this evidence was valuable and both sentences you utter in responding explicitly address that point. In that sentence you’re also implicitly asserting a “rule” that could govern here. That’s taken on the role the law usually fills in the argument. The judge chooses to accept it in (10), questioning your connection between that principle and the facts- but not questioning the principle.
Both attorneys once again do a solid job of keeping the facts clear in this argument. Early on, the only relevant fact is that the witness lied in the past, and you reference that as necessary to your argument. At (11), things get very interesting quickly: you start establishing a strong connection between the law and the facts through an analogy between lying in court and lying in the context of an affair. Why do you do that? Look at what the judge said to you in (10). They are minimizing the lie’s impact on the credibility of the witness through reference to the surrounding facts: the number of times the lie happened and how long ago it was. You have to do the opposite. You need to tie the fact of the past lie as closely as possible to the possibility of a lie in court, so you play up the similarity between the two situations- you analogize them. Opposing counsel has exactly the right technique in responding. Where you play up the similarities, they play up the differences- they distinguish the two cases. You have a couple of different options for responding to that. You could argue that the difference isn’t real, or you could argue that the difference doesn’t matter. In this case, you opt for the latter, because it’s pretty clearly the stronger approach. There is a real difference between having an affair and testifying in court: asserting otherwise would be a bit ridiculous. But the key aspects, you can argue, are the same. The witness is still lying in the face of a promise.

Objection Dialogue Examples: Example Two, Part I

Let’s keep the same facts that Example One uses, but both opposing counsel and the judge make different choices during the objection argument. Let’s also add some detail into the factual background: the lie was told in the course of an affair the witness had. This time opposing counsel objects under Improper Character Evidence. There’s an easy response to that- this questioning pretty clearly falls under an exception to that rule- but the judge’s understanding of that exception makes things... interesting. This example draws heavily on the discussion in Advanced Objection Techniques: Handling Judges.

1. Opposing Counsel: “Objection, Your Honor, Improper Character Evidence.”
2. You: “Your Honor, may I respond?” [judge nods] “This evidence falls under an exception to the Improper Character Evidence rule because it goes to the character of the witness for truthfulness or untruthfulness. The witness’s past lies give us reason to believe him untruthful.”
3. Judge: “What exception is that, Counsel?”
4. You: “Your Honor, rule 608(b) provides that specific instances of conduct of a witness may be inquired into on cross examination if probative of truthfulness of the witness.”
5. Opposing counsel: “Your Honor, may I respond?”
6. Judge: “One moment.” [finds rule in the provided copy of the Rules] “Counsel, this rule indicates that specific instances of conduct may not be proved by extrinsic evidence.”
7. You: “Your Honor, may I respond?” [judge nods] [reading from your copy] “Your Honor, the rule goes on to state that such incidents may be inquired into on cross-examination if probative of the witness’s truthfulness or untruthfulness.”
8. Judge: “‘In the discretion of the court.’ And I’m not convinced of the value of this line of questioning- you’re asking about one incident far removed from the events of this trial. How is this valuable for us today?”
9. You: “Your Honor, it is valuable for the jury to be able to assess the credibility of the witness in his testimony today, and his truthful character or lack thereof affects his credibility. His past lies demonstrate his untruthful character, and that’s valuable in assessing his credibility.”
10. Judge: “I’m not persuaded that the incident you’re exploring affects his credibility.”
11. You: “Your Honor, may I respond?” [judge nods] “Your Honor, the incident I’m referring to isn’t an isolated occurrence. This line of questioning provides evidence about a lie in furtherance of a systematic and deceptive violation of serious promises, not unlike the ones he made today. That is valuable information to have in evaluating his credibility.”
12. Judge [to opposing counsel]: “Response?”
13. Opposing Counsel: “Yes, Your Honor. Counsel’s comparison between the witness’s wedding vows and the promise to tell the truth that he made today is specious: the emotional and cultural context of an affair is completely different than the context of testifying in court. We have no reason to believe the circumstances of this past lie make it likely that he’ll lie today. The fact is that opposing counsel is delving into an isolated incident that occurred years ago. It’s not useful to us today.”
14. You: “Your Honor, may I respond?” [judge nods]. “The fact that the emotional context leading to an affair is different from the emotional context surrounding court testimony is irrelevant to the argument being made here. The issue is whether that lie significantly affects his credibility today, and it does. The simple fact that he’s willing to lie says something important about his credibility. His willingness to lie to those closest to him says something important about his credibility. And his willingness to lie in violation of a promise says something very significant about his credibility.”
[Again, this has been an exceptionally long argument and the judge could cut it off at any point]
See how completely different that example was? Opposing Counsel was shut out of the discussion for some time after the initial objection, because the judge was the active one. Lets look at a few tricky things that caused in your responses. First, the judge asked for a name of the exception you’re referencing. If that caused you a moment of confusion, you’re on the right track. You referenced an exception, sure, and you should be expecting questions and arguments on that point, but the judge’s question makes it sound like they think it has a name like hearsay exceptions do, and of course character evidence exceptions don’t work that way. The judge may genuinely not remember that. You responded as best you could have, substituting a rule number for a name. Notice that you did not correct the judge or attempt to clarify what they were asking for. The second difficulty was caused when the judge read the first sentence of the rule, which looks like it goes against you, without reading the second, which was what you were actually referring to. Of course, many judges will know that you weren’t using “extrinsic evidence” to prove your point here. But some won’t. It looks like you have to correct the judge, when you absolutely cannot do that. You managed that trick by framing it as simply providing the judge with more information. In this case, you simply read further into the rule. You didn’t contradict the judge- not even a “Yes, Your Honor, but...” You might also have noticed how that argument ceased to be about Improper Character Evidence after the judge asked about the value of the evidence. At that point, it’s essentially become a Relevance objection argument. No one said that- it’s unnecessary- and no one attempted to return the conversation to a discussion of the original objection. What the judge wants, the judge gets: if they’re leaning towards sustaining an Improper Character Evidence objection because they don’t think the evidence is relevant, as bizarre as that might sound, that relevance concern has become the biggest threat to your evidence and it’s what needs to be addressed. Opposing counsel goes along with the switch because a concern that the judge raises is probably one they’re inclined to be sympathetic to- it’s become the best way to keep that evidence out. Judges changing the objection argument from what it is to what they think it should be is a relatively common occurrence. You have to go with the flow.

I have a bit more to say about this example. Next time we’ll do the same sort of analysis with it that we did with Example 1, examining the way facts and law were connected and clarified in this argument.

Case Law Bonus Post: Jackson v. Bryan

Outline:

• There are two affirmative defenses useable against action brought for harms caused by the defendant’s recklessness
• A plaintiff’s own recklessness
• A plaintiff’s voluntary assumption of the risks arising from the defendant’s recklessness
• A defendant can pursue either or both of these affirmative defenses.
• A plaintiff’s own contributory negligence is not a defense against an action brought for harms caused by the defendant’s recklessness.

Notes: This caselaw brings a couple of new vocabulary terms. Let’s go over them:

• Affirmative Defense: An affirmative defense is a legal argument in which the defense admits (“affirms”) some of what the plaintiff claims, but asserts that there were other factors which excuse them from liability regardless. The classic example of an affirmative defense is self-defense claims in murder trials: the defense admits that the defendant killed someone, but argues that the defensive nature of the killing means the defendant shouldn’t be punished. In an affirmative defense, the defendant takes on the burden of proof. That’s a huge point to remember. The defense’s main advantage in most trials is that their victory is the default setting: the plaintiff has to do all the work of proving things. When the defense uses an affirmative defense, they abandon that advantage.
• Contributory negligence: Often in complicated real-world situations, the victim of some injury contributed to their own injury. Sometimes they did so through carelessness or stupidity (“negligence”). This is often a defense that’s available to people getting sued: they can argue that the plaintiff was more responsible for the harm than the defendant was, so the defendant shouldn’t be held liable. Notice that we are not allowed to make this argument this year.

We do have two affirmative defenses available to us, described here and in the statutory selections we’re given. First, we have “a plaintiff’s own recklessness,” also discussed in 1302(2). This means that the defense can admit its own recklessness, but argue that the plaintiff was also reckless, using the same definition of recklessness given by earlier case law and the statutes. 1302(2) puts it very precisely: “A plaintiff whose own reckless conduct was a legal cause of plaintiff’s harm is barred from any recovery against a defendant whose recklessness was also a legal cause of the plaintiff’s harm.” Notice that this is a very binary rule: a plaintiff’s recklessness either was or was not a legal cause of their harm, and if it was, they cannot recover at all. This is in stark contrast to contributory negligence arguments, where it’s usually a sliding scale: fault is thought of in percentages, and if the plaintiff is 51% responsible, the defendant isn’t liable- whereas if the plaintiff is 49% responsible, the defendant is. Here there’s no thinking about percentages or relative fault- the plaintiff’s recklessness just either was or wasn’t a cause. That’s a point that might have to be carefully clarified for the judges at times.
The second affirmative defense available to the defense this year is the “assumption of risk” defense. The basic argument here is that while the defense was indeed exposing the plaintiff to risks, the plaintiff knew that and accepted the consequences, and that therefore the defendant shouldn’t be held liable for injuries resulting from those risks. Remember how binary the other affirmative defense was? It’s less clear how the “assumption of risk” affirmative defense works. Look at the text of the statute, 1302(3): “A plaintiff who assumed the risk arising from the defendant's recklessness is barred from recovery for such harm.” There’s ambiguity inherent in that statement because it’s not clear that the defendant’s recklessness is, so to speak, one indivisible thing. Is it possible to assume some of the risk arising from the defendant’s recklessness? If it isn’t, then the defense would need to prove that the plaintiff assumed all of the risk arising from the defendant’s recklessness in order to succeed- a fairly difficult standard to meet. If not, then the defense can use this affirmative defense in conjunction with a standard defense, arguing that some of its choices were indeed reckless, but that the plaintiff assumed the risk of those choices, and that the rest of its choices were not reckless. The latter approach seems the most intuitive to me: asserting that the plaintiff would have to have assumed all the manifold risks of the many choices made in a given case before this defense could have any effect would make it fairly useless. Since it’s Mock Trial and all we have is the material provided in the case packet, we’re free to argue whichever interpretation is more advantageous for our side. However, there are risks in making an argument judges will know is wrong in the real world. In my understanding of the law, the second interpretation is the correct one in the real world: the plaintiff needs to have accepted the particular risk that led to injury. Accepting one risk or accepting risk in general isn’t equivalent to accepting all of them.

Case Law Bonus Post: Yanka v. Edwards Industries

Outline:

• Causation has two parts:
• Cause in fact, or direct cause: requires proving either
• That the plaintiff would not have been harmed but for the defendant’s conduct
• Or that the defendant’s conduct was a substantial factor in bringing about the harm.
• Proximate cause: requires proving both
• That the particular harm suffered by the plaintiff was a foreseeable result of the defendant’s wrongful or unlawful conduct
• And was of a type that could reasonably have been anticipated.
• In analyzing proximate cause, the factfinder must:
• Identify the particular risks that made the defendant’s actions culpable
• And determine whether the injury suffered is among those risks.

Notes: Notice that we’ve moved on to the second section of the caselaw. The last one focused on clarifying our understanding of “recklessness” and “reckless disregard.” This one focuses on our understanding of the “direct and proximate cause” language used in the selections from the Midlands Civil code [1200(4)]. Even though 1200(4) is only one element of the list that goes into proving recklessness, it requires that the plaintiff prove two things: that the defendant’s conduct was a direct cause of the plaintiff’s harm, and that the defendant’s conduct was a proximate cause of the plaintiff’s harm. This case law defines direct and proximate cause, and gives us a start at understanding how we determine whether or not something was a proximate cause.
Let’s start by looking at the definition of direct cause. Direct cause means basically the same thing we think of when we normally talk about something causing another thing- you stomping on my toes would be the direct cause of my sore toes. This case law gives us two different ways to prove something is a direct cause. The first one is what’s sometimes called the “but-for” test. It asks a question- but for the defendant’s conduct, would the plaintiff have been harmed- and invites us to do a thought experiment, in which we imagine that the defendant had never done whatever the plaintiff claims is reckless. Would the plaintiff have still been harmed? If the answer to that question is “no,” then the conduct was a direct cause of the harm. The second method of determining direct cause is fairly simple to understand, but less straightforward to apply. The idea of a “substantial factor” is pretty intuitive: the conduct has to have played a major role in bringing about the harm for it to be a direct cause in this test. But the term “substantial” doesn’t lend itself well to precise definition. There’ll be room to argue about whether some action really was a substantial factor in causing harm.
Proximate cause looks like a strange concept at first, but the example given in the case law really does illustrate the point nicely. There’s a disconnect between the risk taken by the parent and the harm actually caused: the law doesn’t hold people liable for those sorts of harms. The “foreseeability” language in the case law is a simple way to understand why: it isn’t fair to punish people for results they had no way of anticipating. It’s that disconnect the case law guides us to look for when it says “the factfinder must first identify the particular risks that made the defendant’s actions culpable and then determine whether the injury suffered is among those risks.” Let’s break that down a bit. The defendant in this case presumably took actions that entailed certain risks: the risk that someone would be killed, for instance. The jury’s supposed to look at the defendant's actions and essentially figure out what those risks were. Then if the plaintiff’s injuries are on that list, the defendant’s actions are the proximate cause of those injuries.

Case Law Bonus Post: Smith v. Kierce

Notes: Most of us have had the experience of signing various forms promising that we won’t sue before are allowed to do something. Those documents are a form of contract, and not all contracts can be enforced by the law. In an extreme example, you couldn’t sell yourself into slavery: that contract would be “unenforceable” because slavery is illegal. This case law says that you can’t sign away your right to sue for recklessness, either, and contracts that try to do that are unenforceable. This explains the arguments the plaintiff is making in this case: they can’t argue that the defense was negligent, because they signed away their right to do that and the court is enforcing that part of the contract. But the plaintiff can argue recklessness, even though they also signed away that right, because the court is refusing to enforce that part of the contract. This isn’t something you’ll have to explain to the jury, it’s simply interesting background knowledge.

Case Law Bonus Post: Kirby v. Davis

Notes: Again, this case is telling us how to use the facts of a particular case to decide whether or not someone was reckless. We just finished saying in Hopson that risky conduct might not be reckless in emergencies. This case looks at the narrower situation of predictable emergencies. Predictable emergencies can be set apart from emergencies generally because they can- and maybe should- be prepared for, so maybe companies and people should be held liable if they fail to do that. This case law says that if someone made a mistake in an emergency, one of the factors to be considered in deciding whether or not they should be “excused” (held not liable) is whether or not they should’ve been better prepared for that emergency.

Case Law Bonus Post: Hopson v. Dawson

Outline:

• There are rare circumstances in which:
• It may be reasonable to take actions that involve a high degree of risk of serious harm to others.
• Dangerous action may be better than no action at all.
• This does not preclude liability for actions taken in an emergency if the actor’s tortious conduct caused the emergency.

Notes: This case again illustrates the relationship between the factual situation of a case and the legal concept of recklessness. The idea it articulates is a fairly commonsensical one: sometimes we have to do very risky things in an emergency. That shouldn’t be considered reckless. We could probably get to this conclusion if we thought hard about the definition of recklessness explained in MK Studios. Recklessness there is understood to be a function of the relationship between the risk involved and the benefit to others. In the types of emergencies described here, the risks are very high, but so are the potential benefits, like saving a life. So the risk and the reward are still proportionate and the conduct wouldn’t be reckless under the MK Studios rule. Hopson gives us basically an argumentative shortcut to that conclusion: we don’t have to recreate that line of logic in trial because the Midlands Supreme Court already did.
It’s worth noting also that the last sentence has two possible interpretations. It might mean that actors can still be held liable for the type of conduct discussed in the rest of the case (risky choices made in emergency situations) if they caused the emergency in the first place. But it might also mean that non-reckless conduct after an emergency doesn’t excuse- “preclude liability”- for actions that caused the emergency. Based on the fact that the preceding case does seem to exclusively talk about liability for risky emergency conduct, I think the argument for the first interpretation is stronger. But a case for the second interpretation could be- and might be- made.