From the Sidebar - Trial, Litigation and The Practice of Law

By Hayes Hunt

Recently, the Chief Judge for the United States District Court for the Southern District of New York refused to recuse herself from a case simply because her husband and his clients may have been the victim of the defendant’s efforts to hack a computer system.  Similarly, a Philadelphia judge acquitted a defendant/police officer and his verdict raised “concerns” that the judge was married to a police officer.

Since 2009, when the Supreme Court issued its decision in Caperton v. A.T. Massey Coal Co., Inc. 556 U.S. 868 (2009), the issue of recusal has been a hot topic in civil and criminal litigation.  In Caperton, the Supreme Court ruled that a justice on the West Virginia Supreme Court violated the Due Process Clause of the Fourteenth Amendment by not recusing himself in the case.  Recusal in the case was sought after the appellant’s chairman and principal officer gave a substantial donation to the justice’s election campaign.

28 U.S.C. § 455 governs disqualification of federal judges.  Pursuant to § 455, a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”  (emphasis added).  A judge’s disqualification also is required in particular circumstances.  A judge is required to recuse himself when: (1) he has personal bias or prejudice towards a party; (2) he served as a lawyer in the matter; (3) he previously practiced with a lawyer involved; (4) has a financial interest in the matter; or (4) a person with whom he or she has a relationship is involved as a lawyer or party in the proceeding.  

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By Hayes Hunt and Michael Zabel

Next week, oral argument will be heard in Commonwealth v. Koch, a case in which the Pennsylvania Supreme Court is confronted with a question that is increasingly important: When to admit a text message into evidence at trial?

The question matters because electronic messaging – such as text messages or instant messages – is a significant and growing source of potential evidence. In 2010, an estimated 6.1 trillion text messages were sent (that’s over 200,000 messages per second). Attorneys now realize that a key piece of evidence is an exchange of text or instant messages instead of an e-mail or an old-fashioned letter.

When seeking to introduce a text or instant message at trial, one of the biggest evidentiary hurdles is establishing authenticity. (FRE 901). State and federal courts across the country have been applying FRE 901 and its state rule equivalents to text and instant messages.

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by:  Hayes Hunt and Calli Varner

On June 18, 2012, the Supreme Court came down with a fractured 5-4 decision disrupting long-standing 6th Amendment Confrontation Clause precedent as it applies to forensic evidence.  Williams v. Illinois, No. 10-8505 (June 18, 2012). 

The issue before the Court arose out of a rape prosecution in Chicago.  Illinois police recovered the perpetrator’s DNA sample from the victim and sent the sample to a private lab in Maryland.  When the DNA profile report was returned, Illinois police ran it through their database in Illinois and found a match, Sandy Williams.  During Williams’ trial, the Maryland lab report was not introduced into evidence and the Maryland laboratory technicians did not testify.  Prosecutors, however, presented an expert from the Illinois state lab, who testified that it was her opinion that a DNA profile generated from Williams’ sample matched the DNA profile developed by the Maryland lab.  Williams was convicted. 

Later, Williams claimed that the prosecution’s failure to offer the Maryland laboratory technician for him to cross-examine was a violation of his right to confrontation.  The Illinois Supreme Court disagreed and upheld his conviction. 

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by Hayes Hunt and Brian Kint

Jurors in Roger Clemens’ perjury case submitted 29 questions that they want to ask the prosecution’s chief witness, Brian McNamee.  Among the questions: “Why should we believe you when you have shown so many inconsistencies with your testimonies?”  U.S. District Judge Reggie Walton will now have to decide which questions he will allow.

The Federal Rules of Evidence do not explicitly allow or forbid jurors from submitting questions to the court. Rule 611(a) Federal courts have interpreted this rule to leave to the discretion of the trial judge whether to allow questions from jurors.  See, e.g. DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 515 (4th Cir. 1985).  Why does the practice remain so rare?

The advantages of allowing jurors to submit questions are apparent.  It helps jurors get a fuller comprehension of the facts, gives them the opportunity to clarify testimony, and engages them in a process to which they are a critical and vital part.  Frankly, it can resolve problems with lawyers asking bad questions!  Certainly, the practice should keep more jurors attentive and awake during trial.  Although, that has not worked in the Clemens trial as the jurors continue to snooze and yawn during testimony.  At the end of the day, say proponents, juror questions during trial leads to more fully reasoned and just verdicts.

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By Stephen A. Miller 

(Orig. published 7/11/11)

In the 2000 World/Subway Series, Roger Clemens hurled a broken bat at Mike Piazza.  In hindsight, we can ask: Was it “roid rage”? 

Clemens now finds himself on trial this  week in a real Washington D.C. courtroom concerning his use of performance-enhancing drugs (PEDs). 

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By Hayes Hunt and Brian Kint

New “restyled” Federal Rules of Evidence went into effect on December 1, 2011.  These rules were designed to be easier to read and understand while remaining substantively unchanged.  This update reflects the growing “plain language” trend, a movement that seeks to make government more accessible by using language that is concise, clear, and free of technical terms.  In fact, the need for plain language in government is one of the few things that a divided Congress has been able to agree on in recent years, passing the Plain Language Act of 2010. The Act requires that government agencies write documents in clear, concise, well-organized language, appropriate for the intended audience.

The restyling of the Federal Rules of Evidence, however, represents a new frontier in the plain language crusade, because rules of evidence are used primarily by lawyers, a group largely responsible for the rules’ convoluted language and accustomed to working through their intricacies.  Some lawyers may believe that the precision and formality of the law requires complex language that is beyond the common person’s comprehension.  The plain language update to the Federal Rules of Evidence challenges that presumption.  Here are some examples:

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By Benjamin E. Zuckerman

How do jurors reach their verdicts?  It’s simple: they vote for the party whose witnesses they like best. 

Early in my career, I handled a criminal defense matter.  The client had been charged with burglarizing a home in an affluent Philadelphia suburb.  Among the stolen items was a credit card that had been used shortly after the burglary to buy a set of tires at a nearby gas station.  The Philadelphia Police Department’s chief handwriting expert analyzed the forged signature on the credit card receipt and concluded that it matched a sample of my client’s handwriting.

The defense?  My client claimed that on the afternoon of the burglary he had been fishing alone far from the crime scene.  He had no corroboration for his story.  My client was from South Philly with a spotty work history who couldn’t have been less like the suburban jurors if the prosecution had hand-picked him.  My client insisted on his innocence, so we went to trial. 

The two handwriting didn’t actually look identical to me but I had no expert to rebut the prosecution’s star witness, who explained to the jury why the loops, slants, letter shapes and other characteristics of both samples came from the same hand.  All I could do during cross was try to point out their differences.

Having no defense available to me other than my client’s story, I put him on the stand.  I wasn’t sure that I believed him but I wasn’t confident that resting my case and arguing reasonable doubt would be enough.

The end result?  The client was acquitted.  To my surprise, the jurors liked him.  They found his mangled syntax and gruff manor credible and his straightforward answers convincing.

I learned an important lesson from that case.  Witness credibility and likeability are the key factors in almost every trial, from the simplest auto accident case to the most complex commercial dispute.  Jurors invariably will give the benefit of the doubt to the side whose witnesses they want to believe and like.

Benjamin E. Zuckerman is of counsel in Cozen O'Connor's General Litigation Department. He concentrates his practice in the areas of commercial and general litigation.

By Thomas G. Wilkinson, Jr. and Lindsey E. Wilkinson

Just as lawyers now routinely conduct due diligence on opposing parties' social media pages (see our July 20 Sidebar post), some lawyers also are monitoring postings by jurors on social media sites.  In a recent ethics opinion issued by the New York County Lawyers' Association Committee on Professional Ethics (No. 743, 5/18/11), the committee concluded that an attorney may review jurors' postings on publicly available social networking sites during trial.  But they must not "friend" or "tweet" jurors, subscribe to their Twitter accounts, or otherwise contact them, either directly or through others.

Lawyers also may not make misstatements or engage in deceit when they are conducting juror research.  In New York, an attorney who learns of juror misconduct as a result of mining the Internet has a duty to immediately alert the court without trying to take advantage of the information.  Under New York Rule of Professional Conduct 3.5 (not to be confused with the Model Rule), there is a requirement that lawyers expressly advise the court of improper conduct by or towards a juror.  For example, if a lawyer learns that a juror is ignoring the court's instructions that prohibit conducting independent research on the case or counsel, then the lawyer must promptly comply with Rule 3.5(d) and bring such information to the attention of the court. 

In Philadelphia, a juror in the trial of former state senator Vince Fumo tweeted during jury deliberations about the jury's impending "big announcement," handing defense counsel a convenient appeal issue. In a recent South Dakota case, a jury verdict was set aside after a juror performed his own Internet research, which he shared with fellow jurors.  A mistrial had to be declared in Florida after a juror in a major federal drug trial admitted he had researched the Internet for details about the case. This juror was not alone; eight other jurors admitted to the same misconduct.  After weeks of trial testimony, the judge had no choice but to declare a mistrial.

Thomas G. Wilkinson, Jr. is a member of Cozen O'Connor's Commercial Litigation Practice Group and heads the firm’s alternative dispute resolution practice. He concentrates his practice in business litigation, business torts, complex insurance coverage, and professional responsibility matters.

By Benjamin E. Zuckerman

As any trial lawyer knows, direct exams are often more difficult than cross.  During cross-examination you are in charge.  You make the witness tell your story by asking her leading questions that let you control the testimony.  You can change from subject to subject whenever you want. Cross can really be fun.

Direct exams are a different story.  Your role as questioner is more limited.  The witness is the star, not you. It’s her story that the jury needs to hear.  If you don’t handle the direct exam properly the story won’t get told in a clear and convincing way.

Lawyers often run into direct exam problems because they forget--or don’t know how--to ask questions that are simple, organized, direct and concise.  That task can almost always be accomplished by starting each questions with the “W” words. Simply begin most questions with “where”, “when”, “who”, “why”, or “what”.  Your witness will easily understand what you are asking her and the jury will easily understand her answer.  Your client’s story will flow naturally and effortlessly.  A simple example is:

Where were you on the night of January 2?

Why did you go there?

Who else attended that meeting?

What time did you arrive?

What subjects were on the agenda?

When did you leave?

You and your witness will have painted a clear picture for the jurors.  Through this brief exchange they’ll know what was happening, where it took place, who was present, why they were there, etc.  Following up with questions such as “What happened next?”, “Who suggested that?”, or  “When did that happen?” will complete the picture.  Additional “W” word questions can also be thrown into the mix, such as “Was anyone else supposed to attend the meeting?”  You get the idea.

Of course, you can also start questions with other words, such as “Did you stay for the whole meeting?”, but keeping the “W” word formula in mind is a sure-fire way to make your direct exams easy and effective.

Benjamin E. Zuckerman is of counsel in Cozen O'Connor's General Litigation Department. He concentrates his practice in the areas of commercial and general litigation, including a broad range of civil matters.

Last week during the insider-trading trial of Raj Rajaratnam, the defense called Rick Schutte, Galleon's former president of U.S. operations.  Chad Bray of the Wall Street Journal wrote an informative article "Questions Over Defense Move: A Witness for Rajaratnam Stands to Gain by Managing the Suspect's Money" which discussed Schutte's trial testimony.  Schutte testified that Rajaratnam and his family invested approximately $25 million in Schutte's investment fund, which has approximately  $35 million in assets under management, making the Rajaratnam family contribution roughly 70% of the total assets.  $15 million was invested by the Rajaratnam family 8 weeks before trial.  Schutte admitted he may earn an annual fee of $500,000 for managing the money.  There is nothing illegal about the investment relationship, it is just curious that the jury first heard about it during the prosecutor's cross examination.

Typically, you want to volunteer the weaknesses of your case during direct examination.

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New York Times reporters Eric Lichtblau and James Risen wrote a front-page article about Dennis Montgomery, a computer programmer, who received $20 million from the US Government for software that was supposed to thwart terrorism.  The article suggests that Mr. Montgomery's technology may have been a hoax and that the DOJ has been obtaining protective orders to prevent disclosure.  Mr. Montgomery's former lawyer was interviewed for the article.  His ex-counsel described Montgomery as a "con man."  He then went on to say that "[t]he government knew the technology was bogus, but these guys got paid millions for it."  I was curious whether Montgomery's lawyer had, at best, a lapse in judgment and, at worst, violated his professional duties to his ex-client. 

ABA Model Rule of Professional Conduct 1.6 relating to confidentiality provides that a lawyer "shall not reveal information relating to the representation of a client."  A lawyer is obligated to maintain that confidentiality to her former clients.  Rule 1.6 (a) and 1.9.  In addition,  a lawyer shall not “use information relating to the representation to the disadvantage of the former client.” Rule 1.9 (c)(2).  There are certain circumstances where a lawyer’s continued duty may be waived or permitted such as a claim of legal malpractice or ineffective assistance of counsel.  Rule 1.6 (b)(5).  Also, a client may give her lawyer informed consent to reveal confidential information.  Rule 1.6 (a).  These are pretty obvious and basic rules of our profession.  That is why I was surprised to read such an apparent gaffe with my morning coffee.

In all likelihood, the lawyer's opinion that his ex-client is a “con man” was formed as a result of many privileged conversations.  If the attorney tried to use these words at trial, he would be offering an opinion about his past client’s character.  Federal Rule of Evidence 404 (a)(1) and 405 (a).  Counsel is not saying that his ex-client has a reputation in the community as being a con man. The attorney offers an opinion, a negative one, that his client is a con man.  If the lawyer was asked what foundation he had for such opinion evidence, the facts would come from the attorney-client relationship.  There is no way to isolate the attorney’s opinion from the relationship.  For example, assume the attorney believes his ex-client is a con man because he watched him toss weighted dice at the Bellagio.  His opinion would then be derived from personal knowledge unassociated with his legal representation.  Arguably, counsel’s demeaning con man comment was a breach of his duty to confidentiality since he did not formulate the opinion without talking to his ex-client as part of his legal representation.  His commentary that the technology was “bogus” clearly would not be advantageous to his ex-client if anyone involved with the contracts- especially the federal government– alleges fraud. 

I suppose you could apologize to your former client and explain that your front-page quote was a mistake made out of anger and frustration.  Maybe your ex-client owes you a substantial sum of money and is willing to forgive your grave error if you quit sending bills for past services rendered.  A very public and very demeaning comment about your ex-client may or may not cross the lines of legal ethics.  Regardless, there is an internet-search engine called “Google” and your potential clients use it to decide who to hire. 

Do you want to be on the front-page?  Of course you do!  Your comments to the media about former clients should be, at the very least, well-reasoned and preserve confidentiality.  At worst, make sure they are neutral and comport with your duties as a lawyer.   

Branding your ex-client as a criminal is professional seppuku.          

  COMMENT FROM THE SIDEBAR

In Gotham: A History of New York City to 1898, Edwin G. Burrows and Mike Wallace explain the origin of the term "con man."  In 1849, William Thompson started a conversation with a complete stranger and suggested that he knew him.  The stranger was embarrassed he did not remember Mr. Thompson.  Thompson asked the stranger if he could borrow the man's watch for a night.  The embarrassed man, in an attempt to save face, gave Thompson the watch.  Thompson left with the watch.  Subsequently, the victim recognized Thompson on Broadway and had him arrested.  After hearing the story, a journalist called Thompson a "confidence-man".  The term stuck.    

Photo http://uh.edu/engines/Seven_Samurai.jpg 

Impeachment on Direct

How to deal with unexpected testimony on direct examination - Part 2

You call your last witness and things are going great.  A verdict in your client’s favor will be soon to follow.  All you have to do is establish that there was moonlight. 

Counsel: Was there moonlight at the time you saw the accident?

Opposing Counsel: Objection.  Leading and lacks foundation.

Court:  Overruled.

Witness: It was the sun.

Counsel:  Are you sure?

Opposing Counsel: Objection.  Asked and answered and leading.

Court: Sustained.                                                                                                                                                                                                                                                                                                               

The witness had previously said there was moonlight.  Invariably, your next question is “didn’t you testify that” and before you can finish the question your adversary stands up and objects.  The objection is sustained followed by deafening courtroom silence.  Before you say another word, you need to decide whether the witness:  (1) forgot that there was moonlight or; (2) believes it is the sun. 

• Impeachment •

We previously discussed helping the witness remember under FRE 612. Alternatively, If the witness insists that there was sunlight, you need to impeach.  At the moment the witness gives you an unexpected and inconsistent answer, she is hostile to you.  Your instinct is to pounce and ask leading questions. Your adversary is grinning like a Cheshire cat waiting to object to your next question.  You call a sidebar and tell the judge that the witness is a dirty-rotten scoundrel!  Meanwhile, the jury is chewing on the witness’s last answer while watching you squirm.  

It is a common mistake to believe that impeachment is solely reserved for cross examination.  You may impeach on direct.  Federal Rule of Evidence 607 provides that: “the credibility of a witness may be attacked by any party, including the party calling the witness.”  The manner in which you impeach, at least to start, must be with non-leading questions pursuant to Federal Rule of Evidence 611 (c).  If you want to ask leading questions, you need to establish through non-leading questions, that the witness is actually hostile towards you or your client.  A typical example is a former employee of your client that has an axe to grind.  If you cannot get the witness to openly express antagonism, just impeach with non-leading questions.  Below are examples of questions you should ask the witness:

• Mrs. Witness, did you provide a statement to the police an hour after the accident?
• Did you want to provide the police officer with accurate details of the accident?
• Did you provide the police officer with honest answers?
• Did you review your statement with the police officer?
• Did you read your statement to make sure you provided an accurate account of the accident?
• Did you sign the statement after you reviewed it?
• Your honor, may I approach the witness?  Witness, showing you what has been previously marked as Exhibit X.  Is that your signature?
• What is the date next to your signature?
• Directing your attention to paragraph 3 of Exhibit X.  Did you tell the police officer there was moonlight at the time of the accident?       

You have impeached the credibility of your witness on direct with the use of a prior inconsistent statement pursuant to Federal Rule of Evidence 613 (a).  The moon is still full and your case is still bright.    

Everyone's parents had a seemingly different remedy for the hiccups.  I had to hold my arms straight in the air while my mother slowly poured a glass of milk into my mouth. There would be a brief pause -- she and I would stare at one another wondering if I was cured. After a few seconds, I'd invariably hiccup some milk.  My mom and I did this at least a hundred times with limited success.  Despite probabilities, I'm still convinced it works. It is what I learned. 

Lawyers have frequent mental hiccups trying to formulate a question: get a person's name wrong, struggle to find a word, draw a blank. Asking a perfect question every time isn't easy.  Lawyers have a unique cure-all phrase to remedy asking a bad question. Yes, in law there is such a thing as a bad question. The next thing that comes from the attorney's mouth is the cure for the hiccup: Strike that. As if those two words somehow make it all go away. The court reporter just transcribed: Strike that.  The question you pitched is not a strike and there’s no umpire.  

There are two instances when “strike that” is commonly used:  depositions and trial. We probably learned the phrase from watching others take a deposition or try a case. A deposition transcript with clear precise questions, especially on crucial issues, is invaluable.  You will use the transcript at any point in litigation including at trial.   A transcript or video deposition riddled with “strike that” makes your questions less important.  Witnesses have credibility and so do you.  At trial, the jury believes “strike that” has some legal meaning and will be inclined to ignore the question.  The lawyer also wants to excuse the question before the judge or her adversary makes an objection.  Her attempt to restart her question is understandable and valid.  However, her adversary can object:

Objection.  Your Honor.  I ask that counsel be instructed that the stenographer has a duty to transcribe and, in order to exclude any portion of the trial record, counsel needs to have a ruling from the court. 

My best guess is that most of us learned from practitioners using the common law principle “move to strike” after an objection.  Move to strike was an effort to preserve counsel’s objection for appeal relating back to the question or answer.

Another cure for the questioner’s hiccups is to try “let me rephrase”.   Fortunately, you don’t have to raise your arms every time you try it.