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.