How to deal with unexpected testimony on direct examination – Part 1 Refreshing Recollection

Posted on February 14, 2011 by Hayes Hunt — No Comments ↓

How to deal with unexpected testimony on direct examination -Part 1 – Refreshing Recollection

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. empty witness seat - unexpected testimony on direct.jpg

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.

• Rule 612 •

If you decide your witness has made a mistake as a result of poor memory, you merely need to follow Rule 612 of the Federal Rules of Evidence and refresh the witness’s recollection in this order:

1. Establish that the witness’s memory is exhausted on the specific issue or event.

You: Do you remember whether or not there was moonlight?

2. Establish that the witness’s memory may be refreshed by a specific document.

You: Would your memory be helped by reading the signed statement you gave to the police an hour after the accident?

You: Your Honor, if I may, I’d like to mark this as Exhibit X. Showing opposing counsel Exhibit X.

3. Give the witness the document.

You: I’m giving you your signed statement. Please read the third paragraph to yourself.

4. Allow the witness to review the document.

You: Have you had a chance to read the signed statement you gave to the police immediately following the accident?

5. Ask the witness if her memory has been refreshed.

You: Is your memory refreshed regarding the accident?

6. Take the document away from the witness.

You: May I have Exhibit X, Witness. Thank you.

7. Pause and ask your original question again.

You: Now, Witness. Was there moonlight at the time of the accident?

Witness: YES! Absolutely. I’m sorry, I got nervous and forgot.

Now that the witness has reviewed her statement, she apologizes to the jury for her mistake, smiles in embarrassment and is completely forgiven by the jury. The moon is bright and your client’s case is back on track. Don’t wait for re-direct/rehabilitation since a strong advocate would not ask a single question on cross.

Part II next week. Impeachment on Direct.

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Tagged with: Direct Examination, Federal Rules of Evidence, FRE 612, From the Sidebar, Hayes Hunt, Memory, Mistake, Refreshing Recollection, Testimony, Witness
Posted in Trial

Dear Esquire,

Posted on February 7, 2011 by Hayes Hunt — No Comments ↓

As lawyers, we pride ourselves on using precise words in our writing and speech. That is why I am astounded by the frequent misuse of the word “esquire”. I fully admit that I wrote “Esq.” the first time I signed my name after being admitted to the Bar. I thought it was meaningful and a sign of personal accomplishment. I’m certain that AT&T thought the same thing when they looked at the signature on my check for the phone bill. I used the word, but I didn’t know what the word meant. I was told that esquire was a synonym for lawyer. I went back to basics and picked up a dusty dictionary from the bookcase. According to the Merriam-Webster dictionary the word “esquire” has the following definition:

• a member of the English gentry ranking below a knight, or

• a candidate for knighthood serving as shield bearer and attendant to a knight

I realized that there was no way I could consider myself landed gentry since I did White Tower at the Tower of London - dear esquire.jpg not have a fiefdom in the States let alone Great Britain. I decided that I needed to stop referring to myself in such a manner or I might violate the Code of Chivalry. I saw Braveheart and did not want to be on the rack for my potential offense (offence) against the Crown.

Thankfully, Merriam-Webster gave me a way out by also defining the word as being “used as a title of courtesy usually placed in its abbreviated form after the surname <John R. Smith, Esq.>.” I was saved. From that day on, I made sure I only used “esquire” to refer to another lawyer, not myself.

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Tagged with: Cozen O'Connor, Defintion, Esq, Esquire, From the Sidebar, Hayes Hunt, Knight, Merriam-Webster Dictionary
Posted in The Practice of Law

Guess Who’s Coming to the Deposition?

Posted on January 31, 2011 by Hayes Hunt — No Comments ↓

big ben no entry - guess who.jpg I was about to start a deposition at Stained Glass Factory located somewhere between Syracuse and Utica. The owner of the factory decided he wanted to sit in on the deposition of one of his employees. As a new associate, my knee-jerk response was to exclude the owner since he may influence the employee’s answers to my questions. I quickly decided that the owner could attend the deposition since his company was a party in the case. I created a record and explained that the witness’s boss was present in the room and asked whether the employee was concerned about her job. My instinct that the owner could be present was right, but for the wrong reason.

There is no Federal Rule of Civil Procedure that excludes non-parties from attending a deposition. While we typically think of depositions as being private proceedings, a deposition can be very public.

A deposition audience can be used as an advocate’s sword. For example, counsel could invite media reporters, aggrieved family members, or former colleagues to influence and pressure a deposition witness. Imagine that you are defending the deposition of the former CEO of a bankrupt company and it is standing room only for ex-employees that have lost their jobs and pensions. Or perhaps, the parents and siblings are sitting across the table in your deposition which involves the death of their relative in a car accident. There is nothing legally inappropriate or unfair about these audiences being at the deposition.

A protective order is the advocate’s shield. Rule 26(c)(1)(E) allows you to seek a protective order “designating the persons who may be present while the discovery is conducted.” In addition, holding the deposition in your offices will allow you to control access to the deposition. Another potential remedy for your client is to enter into a confidentiality stipulation and agreement at the onset of discovery.

What should you do when you enter a conference room and see the angry mo Angry cartoon - guess who's coming to the dep.JPG b of pensioners with pitchforks and torches? Make a record. Confer with opposing counsel and, if there is no remedy, you and your client should walk out. Rule 30(d)(3) allows you and your client to adjourn the deposition to seek an order terminating or limiting the deposition because it is being conducted in bad faith or in such a manner as to unreasonably annoy, harass, or oppress the deponent. To make a compelling record you need to make yourself an eyewitness. Tell the court reporter exactly what you see. It is crucial that you provide an accurate and honest description of the audience. Set up your 30 (d)(3) motion by establishing a detailed account of what is happening. Meet with your client in the hallway and ask them if the audience will impact their answers and, if so, go back in the room and make your record. You want the judge to see that conference room in the record through the eyes of the witness. If you are videotaping the deposition, use the camera to set up your 30(d)(3) motion. Be Stanley Kramer for a minute and turn the camera to the audience, there is no rule that says the camera may only point in one direction.

While Sidney Poitier, Spencer Tracy and Katherine Hepburn may not be a party to my case, they could be coming to the deposition.

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Tagged with: Civil Procedure, Cozen O'Connor, Deposition, Federal Rules of Civil Procedure, From the Sidebar, Hayes Hunt, Non-parties, Protective Order, Rule 26, Rule 30
Posted in Litigation

Repeat Offender – Community-Based Prosecution

Posted on January 24, 2011 by Hayes Hunt — No Comments ↓

cartoon cop - repeat offenders.JPG

A few months ago, the Philadelphia Criminal Court System underwent a profound change. The recently-elected Philadelphia District Attorney, Seth Williams, decided to move to a community-based prosecution model. The theory is that the prosecutors will have a better understanding of particular areas of the city and the needs of those citizens. The prosecutors will be able to identify individuals who engage in repeated criminal activity in the neighborhood. The repeat offenders.

The idea reminded me of Malcolm Gladwell’s article, “Million-Dollar Murray” in which he writ offenders 2.jpg es about power law distribution – where all the of activity is not in the middle, like a bell-curve, but to one extreme. For those of you lucky enough to once own a turntable: think of the community as a vinyl record and the repeat offender as the scratch on your original copy of Exile on Main Street. One scratch can ruin an entire record.

The prosecutors should be able to better identify the repeat offender by having frequent contact with the police officers that are making daily street arrests. In the past, both prosecutors and defense lawyers relied heavily on arrest and conviction records to make plea offers and for sentencing-guideline math. Under the new model, the conversation between prosecutor, defense counsel and the accused could be very different.

For example, the case of Mick. The prosecutor is informed by the arresting officer that defendant Mick has two new charges of disorderly conduct and public drunkenness. Most of the time, the officer sees Mick on the corner panhandling. On occasion, Mick is so intoxicated that an ambulance is called and the EMT takes a look at him and decides if emergency treatment is needed. All of these contacts with Mick result with no arrest but a lot of resources have been devoted to him. The new charges stem from an outburst when local restaurant owner, Keith, asked Mick to stop screaming profanities at his customers. The case is scheduled for trial. Keith and the arresting officer show up for trial prepared to testify. Mick fails to appear for trial and the judge issues an arrest warrant. Mick has a long arrest record for smash-and-grab car thefts. The prosecutor knows that neighborhood residents consider car break-ins the most common quality-of-life crimes. The prosecutor now knows Mick.

The arresting officer sees Mick a few weeks later and makes the arrest. New bail is set and Mick remains in custody. A lawyer is assigned to his case since he cannot afford to retain counsel. The prosecutor makes an offer which is higher than the standard sentencing guideline range. The prosecution model has identified Mick as a repeat offender regardless of the number of actual convictions.

At that point, Mick’s lawyer, Virginia, realizes that this is not a standard case and must respond with particularity and vigor. Virginia and Mick agree that Keith’s testimony will be enough for the prosecution to prove the elements of the charged offenses. Virginia retains a certified alcohol treatment counselor. Mick is evaluated and a detailed psychological profile is developed by the counselor. Virginia goes back to the prosecutor with a comprehensive treatment plan that would result in Mick receiving a substantial downward departure from the sentencing guidelines. The prosecutor reviews the file again and reads a comment from the arresting officer that Keith just wants to see Mick get some help for alcoholism. Also, Virginia has called Keith and has the same information.

The community-based prosecution model may manage to play on Main Street.

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Tagged with: From the Sidebar, Hayes Hunt, Inquirer, Malcolm Gladwell, New Yorker, Philadelphia, Prosecution, Seth Williams
Posted in Prosecution & Defense

The ups and downs of Upjohn

Posted on January 18, 2011 by Hayes Hunt — No Comments ↓

Good morning Mr. Employee. Thank you for meeting with me. Sitting next to me is Ms. Auditor and she will be taking notes of our interview. I am the lawyer for the company you work for. I’m here to ask you about the big problem your employer needs to figure out. It is my understanding that you may have facts and information about the big problem. Let’s talk.

There is a fine balance in explaining to your client’s employee that you want to have a privileged conversation with the employee, however, you are not his lawyer. You need the employee to be candid and honest. That honesty may incriminate the employee and benefit your client-company. It is an awkward moment when you begin the interview by clearly informing the employee you are not acting in his interest even though you work for the same company.

Every lawyer has some variation of warnings derived from the Supreme Court decision Upjohn v. United States, 449 U.S. 383 (1981). The Upjohn warnings red flag - upjohn.jpg generally include the following:

I represent the corporation. I’m not your lawyer;
I’m going to ask you questions regarding the big problem; our conversation is privileged. It is the company’s choice of whether or not to waive that privilege. If the company decides to waive the privilege, the information you provide may be disclosed to others;
You can talk about the big problem to others. However, you may not talk about what you and I say during this interview to other employees or third-parties with the exception of your lawyer, if you choose to hire one; and
Are you willing to be interviewed regarding the big problem?

Once you have provided the employee with sufficient Upjohn warnings, the attorney-client privilege is maintained by the company. The problem occurs when the company self-reports the employee’s criminal conduct and the employee obviously wants to keep his inculpatory admissions privileged. The employee’s personal attorney sends your client-company a letter stating that the employee reasonably believed he was being represented by you at the interview. You respond with an affidavit from the auditor and a letter explaining that you provided adequate Upjohn warnings. Now it is up to a judge. Could you have done something differently to alleviate your new big problem? Yes.

At the end of the interview you can ask the employee to sign an acknowledge signature line - upjohn.jpg ment that you provided Upjohn warnings. Write each warning out on the acknowledgement. Remind the employee that you gave the Upjohn warnings at the start of the interview and that the acknowledgement merely serves as his or her written confirmation of receipt of those warnings. Make sure the employee initials each warning on the document.

Timing is important. If you give the employee an acknowledgement form at the beginning of the interview you will likely intimidate the employee. The employee will be suspicious and, more importantly, less open and honest in providing answers.

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Tagged with: attorney-client privilege, Client-company, Cozen O'Connor, From the Sidebar, Upjohn v. United States
Posted in Privilege

Strike that.

Posted on January 11, 2011 by Hayes Hunt — No Comments ↓

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.

baseball strike - strike that.jpg

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.

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Tagged with: Cozen O'Connor, Depositions, From the Sidebar, Jury, Objections, Public Speaking, Questioning Techniques, Trial, Witness
Posted in Trial