Trial Law in the Age of COVID The 59th Seminar
February 25 and 26, 2021
The 2021 Advocacy Institute Committee Michael J. Moreland, President John C. Gray, Vice President David L. Brown, Secretary-Treasurer
Continuing Legal Education Activity #357991 12 credit hours 3.25 ethics hours Trial Law in the Age of COVID Table of Contents
Section 1: Thursday Morning
A. Trust and Estate Litigation | 3 Joseph G. Gamble, Des Moines Tara J. Higgins, Des Moines
B. Intellectual Property-Trade Secrets | 23 Glenn Johnson, Des Moines Jonathan L. Kennedy, Des Moines
C. Thoughts on Effective Trial Lawyers | 42 Judge Mark Bennett, Drake University
D. Issues with Wind Energy in Iowa | 130 Thomas S. Reavely, Des Moines
E. Panel on Jury Trials in the Age of COVID | 163 Jennifer E. Rinden, Cedar Rapids Holly M. Logan, Des Moines Karla J. Shea, Waterloo
F. State of the Iowa Supreme Court | 168 Chief Justice Susan Christensen, Iowa Supreme Court
Section 2: Thursday Afternoon
A. Ethical Tips for Practitioners | 169 Justice Matthew McDermott, Iowa Supreme Court
B. Issues with Conflicting Civil Litigation and Criminal Charges | 179 Christine Branstad, Des Moines
C. Litigation Before the Grievance Commission | 203 David L. Brown, Des Moines
D. Medical Malpractice Update | 217 Jeff W. Wright, Sioux City
1 E. Admissibility of Medical Expenses | 230 Henry J. Bevel, III, Waterloo
F. Legislative Update | 238 James W. Carney, Des Moines
Section 3: Friday Morning
A. Ethical Challenges in Mediation | 288 Jeff Boehlert, Des Moines Mark S. Brownlee, Des Moines
B. Appellate Panel | 300 Judge Sharon Soorholtz Greer, Iowa Court of Appeals Judge David May, Iowa Court of Appeals Judge Julie Schumacher, Iowa Court of Appeals Judge Paul B. Ahlers, Iowa Court of Appeals
C. Case Law Update | 302 Judge Paul B. Ahlers, Iowa Court of Appeals
D. COVID-19 and Challenges to the Attorney-Client Relationship | 360 Leon F. Spies, Iowa City
E. ETHICS Update | 366 Nicholas (Tré) Critelli, III Director, Office of Professional Regulation
Tara M. van Brederode Assistant Director for Attorney Discipline, Office of Professional Regulation
2 Section 1
A.
Trust and Estate Litigation
Joseph G. Gamble, Des Moines Tara J. Higgins, Des Moines
3 TRUST AND ESTATE LITIGATION – CAUSES OF ACTION
Joseph G. Gamble Tara J. Higgins Duncan Green, P.C. Des Moines, Iowa
CHAPTER 633 - WILL CONTEST BASICS • Grounds to Contest
o Lack of General Mental Capacity. . Low standard.
o Testator must know: . The natural objects of his or her bounty. . The nature and extent of his or her property. . The distribution he or she desires to make of his or her property. . The nature of the instrument he or she is executing. In re Estate of Adams, 234 N.W.2d 125 (Iowa 1975). • All of the above four facts must exist coextensively at the time the will is executed. In re Estate of Gruis, 207 N.W.2d 571 (Iowa 1973). Failure to meet any one factor invalidates the will. In re Estate of Springer, 110 N.W.2d 380 (1961). • Evidence of the condition of the mind of the testator times subsequent to execution “may be received if there is a reasonable basis for the conclusion that it throws some light on his mental competence at the time the will was made.” Estate of Gruis, 207 N.W.2d at 573.
o Insane Delusion. . General rule – in order to invalidate a will, an insane delusion must be shown to be a wholly unfounded belief to which testator clings in spite of all disproving evidence and which controls the making of his will.
4 . “Even though testator meets the test to establish testamentary capacity in the execution of the testamentary instrument, a contestant may succeed in having the testamentary instrument invalidated if he or she can establish that the testator suffered from an insane delusion.” 28 Causes of Action 2d 99 (Originally published in 2005); see also Hardenburgh v. Hardenburgh, 109 N.W. 1014, 1015 (Iowa 1906) o Undue Influence. . A will executed at a time decedent was under the undue influence of another is invalid. Walters v. Heaton, 271 N.W. 310 (1937). . “Undue influence means a person substitutes his or her intentions for those of the person making the will. The will then expresses the purpose and intent of the person exercising the influence, not those of the maker of the will. Undue influence must be present at the very time the will is signed and must be the controlling factor. The person charged with exercising undue influence need not be personally present when the will was being made or signed but the person's influence must have been actively working at the time the will was being made and signed.” Iowa Civil Jury Instruction 2700.5; see also Olsen v. Corp. of New Melleray, 60 N.W.2d 832, 836 (Iowa 1953). . Elements:
• Susceptibility to undue influence, • Opportunity to exercise such influence and effect the wrongful purpose, • Disposition to influence unduly for the purpose of procuring an improper favor, and
• Result clearly the effect of undue influence. Iowa Civil Jury Instruction 2700.4; In re Estate of Davenport, 346 N.W.2d 530, 532 (Iowa 1984). . More than a scintilla of evidence is required. Id. . In a will contest, the issue of undue influence and lack of testamentary capacity are so intertwined they are impossible to separate. Matter of Estate of Olson, 451 N.W.2d 33, 36
5 (Iowa Ct. App. 1989). “Conduct which might be insufficient to influence unduly a person of normal mental strength might be sufficient to operate upon a failing mind. One who is infirm is more susceptible to undue influence than one who is not.” Frazier v. State Central Savings Bank, 217 N.W.2d 238, 243 (Iowa 1974). . “A suspicion, but not a presumption, of undue influence arises where the dominant party in a confidential relationship participates in either the preparation or execution of the contested will.” Matter of Estate of Baessler, 561 N.W.2d 88, 93 (Iowa Ct. App. 1997), abrogated by Jackson v. Schrader, 676 N.W.2d 599 (Iowa 2003).
o Fraud. . Fraud as a basis of a will contest is usually attempted to be shown in connection with undue influence, but fraud and undue influence are two separate grounds for setting aside a will. . Fraud consists of willfully false statements of fact by a beneficiary to a testator, which are made in bad faith or with intent to deceive testator, which do deceive him and induce him to make a will he would not otherwise have made. In re Hollis' Estate, 12 N.W.2d 576 (Iowa 1944).
o Mistake. . “The general rule is that the validity of a will or any part of it is not affected by a mistake of either law or fact inducing the execution of the will, unless fraud or undue influence was perpetrated upon the testator.” In re Estate of Henrich, 389 N.W.2d 78, 83 (Iowa Ct. App. 1986). • An action to contest or set aside will must be commenced within four months of the date of the second publication of notice of admission or one month following the mailing of notice to all heirs of the decedent and devisees whose identities are reasonably ascertained, whichever last occurs, or be forever barred. Iowa Code § 633.309 (2021).
o This statute of limitations will not be tolled by the defendant fraudulently concealing information which would have put the plaintiff on notice of grounds for a will contest. In In re Estate of Thompson, 346 N.W.2d 5 (Iowa 1984).
6 • An action objecting to the probate of a proffered will, or to set aside a will, is triable in the probate court as an action at law, and the rules of civil procedure governing law actions, including demand for jury trial, shall be applicable thereto. Iowa Code § 633.311 (2021).
• Burden of Proof. • The proponent of the will has burden of proof with respect to due execution. In re Estate of Matt, 205 N.W. 770 (Iowa 1925).
• On other grounds of contest, the contestant has the burden of proof. Bishop v. Scharf, 241 N.W. 3 (Iowa 1932). • Who is entitled to contest?
o Any interested person may petition to (i) set aside the probate of decedent's will by filing a written petition therefor which shall state the grounds for such relief or (ii) object to the probate of a will prior to its admission by filing written objections thereto with the court, in which case the will may not be admitted until such objections have been adjudicated. (Iowa Code §§ 633.308; 633.310).
o No statute defines who is an interested person. Generally, an interested person is any person who gains a pecuniary benefit in a decedent's estate in the absence of a will. In re Estate of Stewart, 77 N.W. 574 (1898). The Iowa Supreme Court has held that the following persons have a sufficient interest to object to a will: . Judgment creditor of an heir whose judgment would attach to decedent’s real property passing to the heir in intestacy. In re Estate of Duffy, 191 N.W. 165 (1940). . Any heir of the decedent. In re Estate of Kenny, 10 N.W.2d 73 (1943). . Devisee under a prior will who petitions to set aside probated will on basis th.at will under which devisee claims is the last will. Kostelecky v. Scherhart, 68 N.W. 591 (1896). • Who is not entitled to contest?
o General creditor of an heir. Burk v. Morain, 272 N.W. 441 (1937). . A person whose interest will not be diminished by the probate of the will. Hoover v. Hoover, 26 N.W.2d 98 (1947). . A devisee or beneficiary who would receive nothing except under the will. Seery v. Murray, 77 N.W. 1058 (1899).
7 . An executor under a prior will who has no other interest, receiving nothing under the will or otherwise. In re Stewart's Estate, 77 N.W. 574 (1898). . One without any interest in the decedent's estate or property. Burk v. Morain, 272 N.W. 441 (1937). . A daughter-in-law of the testator whose husband was a beneficiary under a prior will and who claimed that her dissolution settlement would be increased if her husband inherited his share of the property. In re Estate of Pearson, 319 N.W.2d 248 (Iowa 1982). INTENTIONAL INTERFERANCE WITH INHERITANCE & YOUNGBLUT I. Overview of Case - Youngblut v. Youngblut, 945 N.W.2d 25 (Iowa 2020)
• The Youngblut case involved a will contest between two brothers – Plaintiff Harold Younblut and Defendant Leonard Youngblut. Three months prior to their deaths, the testators in Younblut revised their Wills so that a parcel of land known as the South Farm would pass to Leonard. The new Will also set forth an anti-contest provision stating that if any beneficiary challenged the new Will, he or she would receive nothing. In previous Wills, the South Farm had been left to Harold.
• Harold did not challenge the new Will via a traditional will contest under Iowa Code §§ 633.308 – 633.320. Instead, Harold brought only a separate tort claim for intentional interference with an inheritance against Leonard. The underlying basis for Harold’s claim was that the Wills had been revised as a result of Leonard’s wrongful acts.
• Under these facts, the Iowa Supreme Court held that a disappointed heir (i.e. Harold) could not forego a Will Contest and then challenge that Will via a separate intentional interference claim.
• In reaching this holding the Supreme Court stated as follows: For those reasons, we now hold that a party alleging a decedent’s will was procured in whole or in part by tortious interference must join such claim together with a timely will contest under Iowa Code § 633.308.
8 II. Intentional Interference as a Part of a Will Contest
• Youngblut makes clear that a disgruntled beneficiary cannot upset the dispositive scheme set forth under a Will by only bringing an intentional interference claim outside of the probate court.
o Cannot avoid anti-forfeiture clause.
o Cannot avoid compressed statute of limitations for a Will Contest.
III. Intentional Interference as a Stand-Alone Claim
• An Intentional Interference Claim as a stand-alone claim remains viable after Youngblut – The Iowa Supreme explicitly noted that the tort continues to have value outside the context of challenging a testator’s Will.
• An Intentional Interference claim outside the context of a Will Contest remains an important mechanism in which to challenge non-probate transfers that do not pass under a Will – i.e. assets that pass via beneficiary designation or to a joint owner or via pre-death gifts.
CHAPTER 633A - BREACH OF TRUST • The various duties and obligations of a Trustee include, but are not limited to, the following:
o Iowa Code § 633A.4201 imposes fiduciary duties on a trustee when exercising a power under the trust, to act in accordance with fiduciary principals.
o Iowa Code § 633A.4202 imposes a duty of loyalty on a trustee to administer the trust solely in the interest of the beneficiaries, and to act with due regard to their respective interests.
o Iowa Code § 633A.4203 imposes a standard of prudence on the Trustee: “A Trustee shall administer the trust with reasonable care, skill, and caution as a prudent person would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust.” In addition, the trustee has
9 the duty to take control of and safeguard the property of the trust. See Iowa Code § 633A.4209.
o A violation by a trustee of a duty the trustee owes a beneficiary is a breach of trust. The remedies of a beneficiary for breach of trust are exclusively equitable and any action shall be brought in a court of equity. Iowa Code § 633A.4501 (2021).
o A beneficiary may charge a trustee who commits a breach of trust with the amount required to restore the value of the trust property and trust distributions to what they would have been had the breach not occurred, or, if greater, the amount of profit lost by reason of the breach. Iowa Code § 633A.4503.
• One year statute of limitations.
• In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney fees, to any party, to be paid by another party or from the trust that is the subject of the controversy. Iowa Code § 633A.4507.
• A person who, in bad faith, wrongfully takes, conceals, or disposes of trust property is liable for twice the value of the property, attorney fees, court costs, and where consistent with existing law, punitive damages, recoverable in an action by a trustee for the benefit of the trust. Iowa Code § 633A.4605.
CHAPTER 633B – ABUSE OF POWER OF ATTORNEY I. Iowa Code Chapter 633B
• Adoption of the Uniform Power of Attorney Act
o The Uniform Law Commission (formally the National Conference of Commissioners on Uniform State Laws) adopted the Uniform Power of Attorney Act in 2006. The Uniform Law Commission promulgated this Act in response to a “growing divergence among states’ statutory treatment of powers of attorney” and to incorporate safeguards for the protection of an incapacitated principal. See Uniform Power of Attorney Act (2006), Prefatory Note.
10 o Iowa passed its version of this Uniform Act under Iowa Code Chapter 633B in April of 2014. To date, 28 states have adopted some version of this Uniform Act.
o Prior to its adoption of the Uniform Power of Attorney Act, Iowa had not adopted the previous version of the Uniform Act, and statutory law on the operation of powers of attorney was sparse. There was nothing setting forth an agent’s actual duties to a principal and there was nothing setting forth the extent of an agent’s liabilities for action or inaction while operating under the power of attorney.
• What is a Power of Attorney:
o A general power of attorney allows individuals who need or want assistance with financial matters to designate an agent (usually a close friend or family member) to handle affairs on their behalf.
o This designation is often done on a form which is set forth verbatim under Iowa Code § 633B.301 (See Appendix A for Statutory Power of Attorney form).
o These power of attorney forms are very popular. They are inexpensive and widely available, and they allow everyone to plan for their financial future short of having a conservatorship or a trust in place.
o In Iowa the default rule is that the power of attorney provided to an agent is durable which means that the authority of the agent survives the incapacity of the principal he/she is assisting. Iowa Code § 633B.104.
• Agent’s Duties under a Power of Attorney:
o Iowa Code § 633B.114 sets forth an agent’s duties to the principal. Some of the duties are as follows:
. Agent must act in accordance with the principal’s reasonable expectations or to the extent unknown, in the principal’s best interest (mandatory).
. Agent must act in good faith (mandatory).
11 . Agent must act only within the scope of authority granted in the power of attorney document (mandatory).
. Act so as not to create a conflict of interest that impairs agent’s ability to act in the best interests of the principal (default).
. Act with the care, competence, and diligence ordinary exercised by agents in similar circumstances (default).
. Keep a record of all receipts, disbursements, and transactions made on behalf of the principal (default).
. Preserve the principal’s estate plan to the extent actually known by the agent, if consistent with the principal’s best interests (default).
• Civil Liability
o Several provisions of Iowa Chapter 633B are directed at identifying and remedying an agent’s breach of his duties while operating under the power of attorney.
. Iowa Code § 633B.117 provides that an agent that violates Iowa Chapter 633B is liable to the principal or to the principal’s successors in interest.
. Iowa Code § 633B.116 provides a wide-ranging list of parties that have standing to challenge an agent’s activities while operating under a power of attorney, including:
• The principal;
• Any other fiduciary acting for the principal (i.e. guardian, conservator, trustee);
• The principal’s spouse, parent, descendant, or an individual who would qualify as a presumptive heir;
12 • A person named as a beneficiary to receive any property, benefit, or contractual right upon the principal’s death;
• Any person that can demonstrate a sufficient interest in the principal’s welfare.
. Iowa Code § 633B.114(8) provides that absent contrary language in the power of attorney form, any successor in interest of the principal’s estate, may demand that an agent disclose all of the principal’s records after the principal’s death, and the agent is then required to disclose all transactions conducted while acting as agent within 30 days of the request.
• When Effective
o 633B became effective on July 1, 2014.
o 633B liability attaches to all actions brought against agents on or after July 1, 2014 even if the power of attorney form was executed prior to July 1, 2014. § 633B. 403.
. See Matter of Guardianship of Chott, No. 18-1499, 2019 WL 4297854 (Iowa Ct. App. Sept. 11, 2019) (acknowledging that because the act in question occurred in September of 2017, 633B was applicable even though the power of attorney itself was created before the Act was adopted)
o BUT 633B liability does NOT attach to financial transactions which were finalized prior to July 1, 2014. Iowa Code § 633B.403
• Recovery
o The Agent’s Liability:
. The agent that is found to have breached his duties under 633B must restore the value of the principal’s property to what it would have been had the violation not occurred; AND reimburse the principal or the principal’s successors in interest for attorney fees and
13 costs paid on the agent’s behalf. Iowa Code § 633B.117 (mandatory).
. The Court may also award reasonable attorney fees and costs to the individual challenging the agent’s actions if that challenger’s action against the agent prevails. Iowa Code § 633B.116 (discretionary). o Equitable Claims:
. Unlike the Iowa Trust Code (Iowa Code § 633A.4501), which explicitly states that claims against a Trustee for breach are “exclusively equitable and any action shall be brought in a court of equity,” the Power of Attorney Act does not specifically mandate that claims against an agent under 633B must be tried in equity.
. That being said, the remedy is fashioned as an equitable remedy (recovery rather than damages); and
. Thus far the consensus for the few cases which have reached Iowa’s appellate courts under 633B is that the claims have been tried in equity. Matter of Guardianship of Chott, No. 18-1499, 2019 WL 4297854 (Iowa Ct. App. Sept. 11, 2019); Matter of Estate of Hadsall, No. 17-2010 2019 WL 1056803 (Iowa Ct. App. March 6, 2019); 928 N.W. 2d 152; Cich v. McLeish, No. 18-0069, 2019 WL 1056804 (Iowa Ct. App. March 6, 2019); Stalzer v. Smith, No. 15-1739, 2016 WL 4384184 (Iowa Ct. App. Aug. 17, 2016) but see Trumm v. Iowa National Heritage Foundation, No. 15-0813, 2016 WL 3272295 (Iowa Ct. App. June 15, 2016) (discussing whether action was tried in equity or at law and ultimately determining action was tried in equity because relief requested was for specific performance of a real estate contract). o Non-Exclusive Remedy
. Actions initiated against an agent under 633B are not exclusive. Iowa Code § 633B.123. Prior actions that could have been brought against an agent remain available.
14 II. Practical Application of 633B
• The ‘Typical’ Case – “Gifting” and Outright Transfers from the Agent to Himself
o Agent’s Ability to Gift - Express Provisions Need to be Set Forth in Instrument
. An agent cannot make a gift to herself of the principal’s assets unless the Power of Attorney document expressly gives that authority. Iowa Code § 633B.201(1)(b).
. Even if the Power of Attorney expressly provides that the agent can make gifts, an agent that is not the spouse or a lineal relative of the principal is still precluded from making gifts to herself or to her dependents unless the Power of Attorney expressly states that said agent has the authority to make such gifts. Iowa Code § 633B.201(2).
. Even if the Power of Attorney expressly provides that the agent can make gifts and the agent is a spouse/lineal relative of the principal, the agent’s ability to make gifts is limited to (1) an amount NOT in excess of the annual federal gift tax exclusion amount (i.e. currently $15,000 per year per done); (2) gifting in accordance with the principal’s objectives, if known by the agent, and the principal’s best interests by considering the value and nature of the principal’s property; the principal’s foreseeable obligations and need for maintenance; the minimization of taxes; the eligibility of a principal to receive benefits; and the principal’s customary pattern of gifting. Iowa Code §633B.217.
o Strict Construction of the Agent’s Ability to Gift
. An agent serving pursuant to a power of attorney is limited by the principal that “a power of attorney must be strictly construed and the instrument will be held to grant only those powers which are specified.” In re Estate of Frye, No. 13-1170 2014 WL 3511827 (Iowa Ct.
15 App. July 16, 2014) quoting In re Estate of Crabtree, 550 N.W. 2d 168 (Iowa 1996); see also Cincinnati Life Ins. Co. v. Estate of Mangino, No. 14-0039, 2014 WL 6682032 (Iowa Ct. App. Nov. 26, 2014) (finding that there was no need to address questions of fairness or whether agent acted in good faith because the power of attorney form failed to provide the agent with the ability to even make the challenged financial transaction).
. Under Iowa Chapter 633B, absent very specific authority in the Power of Attorney document allowing an agent to make gifts, any gifts which an agent makes to herself or to her loved ones in excess of the annual gift tax amount will be almost impossible to maintain even if the evidence indicates that the principal agreed with / consented to the transfer.
o Compensation for Service
. Unless a bank or trust company is serving as agent, the agent operating under a power of attorney is not entitled to compensation for serving. Iowa Code § 633B.112.
• Liability for Transactions Apart from Outright Gifts/Transfers to the Agent.
o Even if the Power of Attorney instrument authorizes the agent to enter into certain financial transactions, the transaction must still be in accordance with the principal’s known objectives and best interests or the agent remains subject to liability under 633B.
o One way that Iowa Courts appear to be evaluating whether a transaction is in accordance with the principal’s objectives is the extent to which a challenged transaction undermines the principal’s pre-existing estate plan. This is particularly the case when the challenged transaction benefits the agent or a member of his family (See Section III of this Outline regarding Presumption of Guilt).
. Placing Funds in an Account held Jointly with Agent.
16 • See Matter of Estate of Hadsall, No. 17-2010, 2019 WL 1056803 (Iowa Ct. App. March 6, 2019): Jean’s estate plan called for all of her assets to be held in a Trust which, at her death, was to be equally divided amongst her four (4) children. Years after this estate plan was in place, Jean named her son, John, to act as her agent under a power of attorney document. Later Jean sold various assets (two farms and farm equipment), but the proceeds she received from these sales was not placed in an account held in Jean’s name or in the name of her Trust. Instead almost all proceeds that would have passed under Jeans’ Trust were placed into accounts held jointly with John.
• The Iowa Court of Appeals upheld the determination of the District Court that John could not uphold these transfers as being the product of his good faith or of Jean’s free, intelligent, and voluntary consent even though the Court found that Jean was competent at all times relevant to the challenged transaction.
. Placing Funds in an Account that names Agent as a Transfer or Payable on Death Beneficiary.
• Cich v. McLeish, No. 18-0069, 2019 WL 1056804 (Iowa Ct. App. March 6, 2019): June had two farms. Under her Will June left one of her farms (the Hawkeye farm) to her son Mark and she left her other farm (the Maynard farm) to her three daughters.
• June later transferred the Hawkeye farm to Mark during her lifetime.
• Years after executing the above estate plan, June designated Mark as her agent under a power of attorney instrument. As agent, Mark sold the Maynard farm.
17 • The sale proceeds from the Maynard farm were then placed into an account and June executed a transfer on death beneficiary designation so that all of the proceeds in that account would automatically pass to Mark at June’s death rather than under June’s Will.
• The Court held that Mark could not show that June’s action was the result of a free, intelligent, and voluntary action on her part, and ordered over a $1,000,000 be returned to June’s Estate to pass under her Will rather than in accordance with the beneficiary designation.
. Entering into a Contract with Agent.
• Trumm v. Iowa National Heritage Foundation, No. 15-0813, 2016 WL 3272295 (Iowa Ct. App. June 15, 2016): Joe cash rented his Uncle Robert’s farm for several years. Evidence suggested that Uncle Robert had wanted farmland to continue to be owned “by the family” and that it upset him when land was sold outside of the family. Even so, under Uncle Robert’s Will, his farm was slated to pass to the Iowa Natural Heritage Foundation.
• After executing the above estate plan, Uncle Robert’s health began to decline and Joe became agent under a designated power of attorney form. According to Joe, Uncle Robert was adamant that his land stay in the family, and, so Joe, as agent, entered into an installment contract with himself, as buyer, whereby Joe would make payments to Uncle Robert during his lifetime in order to purchase the farmland. Under the contract entered into by Joe, as agent, and Joe, as buyer, the payments due would cease upon Uncle Robert’s death, and Joe would own the farmland.
• The Iowa Court of Appeals upheld the District Court’s determination that the real estate contract was unenforceable because not only was
18 the power of attorney instrument itself questionable for lack of capacity, but Joe could not establish that he acted in good faith in the transaction.
• Liability for Transactions Executed by the Principal
o Liability as an agent is not limited to those financial transaction affirmatively undertaken by the agent. The same liability can attach when the agent benefits from a transaction that the principal has ostensibly executed.
. In Cich v. McLeish, No. 18-0069, 2019 WL 1056804 (Iowa Ct. App. March 6, 2019), discussed supra, it was the principal that executed the transfer on death designation benefitting the agent and the agent was still found to have breached his duties as agent.
. Mendenhall v. Judy, 671 N.W. 2d 452 (Iowa 2003): Marilyn was serving as agent for her mother, Gladys, and providing her with substantial daily assistance. At this time, Gladys, with the assistance of counsel, executed a declaration of gift that transferred all of Gladys’ shares in the family farming operation to Marilyn. Shortly before this transaction, a third party (a banker) was added to Gladys’ power of attorney form in order to approve gifts. The declaration of gift of the shares to Marilyn was executed by both Gladys and the third-party agent. In spite of these precautions, the Iowa Supreme Court still held that the gifts of these shares must be set aside as the product of undue influence.
• When is the Agent Acting Under 633B
o Under 633B, the default provision is that a power of attorney is effective on the date it is executed. Iowa Code § 633B.109. In order to be valid under Iowa law, however, only the principal must sign the document in the presence of a notary - the named agent is not required to sign. Iowa Code § 633B.105.
19 o The agent named under a power of attorney is deemed to have accepted serving in that role by exercising authority as agent, by performing duties as agent, or by any other assertion or conduct indicating acceptance. Iowa Code § 633B.113. o Taken in conjunction, the end result is that there will be situations, in which an individual designated under someone’s power of attorney as agent finds himself subject to the provisions of Section 633B without ever actually using his power of attorney and even without ever seeing the actual power of attorney instrument.
. Matter of Guardianship of Chott, No. 18-1499, 2019 WL 4297854 (Iowa Ct. App. Sept. 11, 2019): In Chott, a daughter (Katherine) had been named agent under her mother (Sylvia)’s power of attorney in 2010. Katherine was not aware that she had been named agent until many years later and Katherine never used it to conduct financial transactions. But Sylvia was dependent on Katherine’s assistance, and Katherine acknowledged that although she did not pay her mother’s bills or control her finances, she was able to review her online account activity and had offered to pay bills on her behalf.
. In September of 2017, Katherine drafted a letter (executed by Sylvia) in order for over $29,000 to be withdrawn from Sylvia’s account and placed in Katherine’s account. Katherine testified that this was done at the behest of Sylvia who was insistent on making a large gift to both Katherine and Sylvia’s other child (Katherine’s brother), Kenneth.
. Katherine argued that her actions were not subject to review under Iowa Chapter 633B because she had never accepted acting as power of attorney.
. The Iowa Court of Appeals, while acknowledging that there was no evidence that Katherine used the power of attorney, still found that Katherine was subject to 633B because she had previously asserted that she was the one that was responsible for her mother’s “well-being,
20 finances, and caretaking.” The Court found that these affirmations were was sufficient “assertions” and “conduct” by Katherine for her to have accepted acting as Sylvia’s agent – therefore, Katherine was subject to 633B.
o Iowa legislators have at least considered amending the law related to durable powers of attorney to require the agent to affirmatively acknowledge his fiduciary duties to the principal before the power of attorney instrument can be valid; however, so far, no statute to that end has been enacted. See H.F. 416, 86th General Assembly.
III. The Presumption of Guilt
• All of the above-cited cases are unique because they place a burden upon the defendant/agent this is very difficult to overcome. All of the transactions in which the agent is benefitting are deemed presumptively fraudulent, and it is on the agent to disprove this presumption.
• Under normal circumstances, it is upon the party alleging breach, undue influence, or fraud that must support his allegation, but because an agent is always in a fiduciary relationship with the principal (and often in a confidential relationship with the principal as well), any transaction which benefits the agent is presumed to be fraudulent or the product of undue influence. Mendenhall v. Judy, 671 N.W. 2d 452 (Iowa 2003).
• In order to overcome this presumption of fraud, it is upon the defendant/agent to establish both of the following (1) that the grantee/agent acted in good faith throughout the transaction; and (2) that the grantor acted freely, intelligently, and voluntarily. Jackson v. Schrader, 676 N.W.2d 599, 605 (Iowa, 2003).
• Factors that make it more likely the agent can overcome the presumption of fraud:
o When the principal consults with an independent professional before the challenged transaction.
21 . See Stalzer v. Smith, No. 15-1739, 2016 WL 4384184 (Iowa Ct. App. Aug. 17, 2016) (finding that agent [daughter] had overcome the presumption of fraud, after the principal’s financial advisor testified that the principal [father] acted freely, intelligently, and voluntarily in naming his daughter as the sole beneficiary of a large brokerage account);
. See also Miller v. Eisentrager, (finding that agent overcome presumption of fraud when principal’s attorney testified that principal had wanted to transfer home to his daughter of his own free will). o When the challenged transaction is in accordance with the principal’s estate plan or established pattern of giving.
. See Jackson v. Schrader, 676 N.W. 2d 559 (Iowa 2003) (finding the presumption of undue influence was rebutted when evidence established a clear propensity of the mother [the principal] to favor her one daughter [the agent] over her other daughter that predated the agency relationship).
22 Section 1
B.
Intellectual Property-Trade Secrets
Glenn Johnson, Des Moines Jonathan L. Kennedy, Des Moines
23 ATTORNEYS AT LAW 801 Grand Avenue, Suite 3200 Des Moines, Iowa 50309-2721 www.ipmvs.com
Iowa Academy of Trial Lawyers 2021 Annual Meeting February 24, 2021
“INTELLECTUAL PROPERTY – TRADE SECRETS”
Presentation Outline by Glenn Johnson and Jonathan Kennedy of McKee, Voorhees & Sease PLC
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I. Why Trade Secrets a. Trade Secret Value and Theft II. Trade Secret Protection a. State Law i. Uniform Trade Secret Act ii. Other laws iii. b. Iowa Law and Recent CaselawFederal Protection i. Statutory History of Federal Protection and development of civil cause of action ii. Types of Misappropriation 1. Acquisition 2. Disclosure or Use 3. “Improper Means” Requirement iii. Exceptions and Defenses 1. Reverse Engineering 2. Independent Derivation 3. Law Means of Acquisition 4. Whistleblower Protections 5. Retaliation lawsuit 6. Court filings iv. Remedies v. Statute of Limitations vi. Preemption 1. No preemption under Iowa Act 2. Be wary if asserting a claim outside of Iowa or based upon foreign law: a. Nebraska – no preemption b. Illinois – statute preempts common law tort claims based upon misappropriation of confidential information that does not rise to the level of a “trade secret.” (Thomas & Betts Corp. v. Panduit Corp., 108 F. Supp.2d 968, 971 (N.D. Ill. 2000)) c. Wisconsin - statute only preempts other remedies based upon
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misappropriation of “trade secrets,” and leaves untouched any other common law remedies based upon confidential information or theft of information (Burbank Grease Servs., LLC v. Sokolowski, 717 N.W.2d 781, 789 (Wis. 2006)) vii. Supplemental Jurisdiction of State Claims III. Filing Considerations and Strategy a. Federal Question i. Interstate Commerce b. Factual Considerations i. Multi-jurisdictional ii. International Parties iii. Interest in seizure c. Pleading Standard d. Expert Standards IV. Trial Considerations
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Intellectual Property - Trade Secrets Iowa Academy of Trial Lawyers 2021 Annual Meeting February 24, 2021
Glenn Johnson Jonathan Kennedy 1 www.ipmvs.com
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Intellectual Property - Trade Secrets
Jonathan Kennedy
Glenn Johnson
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Trade Secret Value
Publicly trade companies have an estimated $______worth of trade secrets?
(a) $20 billion (b) $800 billion (c) $5 trillion (d) $10 trillion
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Trade Secret Value
Publicly trade companies have an estimated $______worth of trade secrets?
(a) $20 billion (b) $800 billion (c) $5 trillion (d) $10 trillion
Source: Congressional Research Service, “Protection of Trade Secrets: Overview of Current Law and Legislation” p. 13 (April 22, 2016) (citing U.S. Chamber of Commerce, “The Case for Enhanced Protection of Trade Secrets in the Trans-Pacific Partnership Agreement,” at 10), available at https://www.fas.org/sgp/crs/secrecy/R43714.pdf.
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Trade Secret Theft “U.S. companies annually suffer billions of dollars in losses due to the theft of their trade secrets by employees, corporate competitors, and even foreign governments. Stealing trade secrets has increasingly involved the use of cyberspace, advanced computer technologies, and mobile communication devices, thus making the theft relatively anonymous and difficult to detect.” Source: Congressional Research Service, “Protection of Trade Secrets: Overview of Current Law and Legislation”, at “Summary” (April 22, 2016).
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Trade Secret Theft
Loss attributable to trade secret theft is estimated to be between 1-3% of U.S. Gross Domestic Product.
Source: PricewaterhouseCooper & Center for Responsible Enterprise and Trade (CREATe.org), “Economic Impact of Trade Secret Theft: A Framework for Companies to Safeguard Trade Secrets and Mitigate Potential Threats,” at 3 (February 2014), available at http://www.pwc.com/en_US/us/forensic- services/publications/assets/economic-impact.pdf
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Trade Secret Protection
Basis of Protection
State • All 50 states have a Trade Secret Statute • 49 are based on the Uniform Trade Secret Act (UTSA) • Exceptions: • New York • Massachusetts adopted the UTSA recently.
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Trade Secret Protection Uniform Trade Secret Act’s Definition
Uniform Trade Secret Act of 1985 § 1 (4) “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
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Trade Secret Protection Basis of Protection
Federal • Trade Secrets Act of 1948 • 18 U.S.C. § 1905 • Forbids federal government employees and contractors from unauthorized disclosure of government information • Penalty: • Removal from office/employment • Fine • Imprisonment (not greater than 1 year)
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Trade Secret Protection Basis of Protection
Federal • The Economic Espionage Act of 1996 • 18 U.S.C. §§ 1831-1839 • Definition similar to UTSA • Focus: Criminal • Created Federal two Federal Criminal Offenses: • § 1831: Trade secret theft to benefit a foreign entity (economic espionage) • § 1832: Trade secret theft intended to benefit another party
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Trade Secret Protection Basis of Protection
Federal • Defend Trade Secrets Act of 2016 • Amended the EEA • 18 U.S.C. § 1836 • Definition still similar to UTSA • Created a federal civil cause of action for trade secret misappropriation
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Trade Secret Protection
18 U.S.C. § 1839(3) (2016)
“trade secret” means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program, devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if-- (A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.
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Trade Secret Misappropriation
18 U.S.C. § 1836(b)(1) (2016)
“An owner of a trade secret that is misappropriated may bring a civil action under this subsection if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.”
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Trade Secret Misappropriation 18 U.S.C. § 1839(5)(A)-(B) (2016)
Two Types of Misappropriation: (1) Acquisition (2) Disclosure or Use
Note: These are two independent theories that you can plead
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Trade Secret Misappropriation
18 U.S.C. § 1839(5)(A) (2016)
Misappropriation by Acquisition
“Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means”
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Trade Secret Misappropriation 18 U.S.C. § 1839(5)(B) (2016) Misappropriation by Disclosure or Use
“disclosure or use of a trade secret of another without express or implied consent by a person who-- (i) used improper means to acquire knowledge of the trade secret; (ii) at the time of disclosure or use, knew or had reason to know that the knowledge of the trade secret was-- (I) derived from or through a person who had used improper means to acquire the trade secret; (II) acquired under circumstances giving rise to a duty to maintain the secrecy of the trade secret or limit the use of the trade secret; or (III) derived from or through a person who owed a duty to the person seeking relief to maintain the secrecy of the trade secret or limit the use of the trade secret; or (iii) before a material change of the position of the person, knew or had reason to know that-- (I) the trade secret was a trade secret; and (II) knowledge of the trade secret had been acquired by accident or mistake.”
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Trade Secret Misappropriation 18 U.S.C. § 1839(6) (2016)
Improper Means • Theft • Bribery • Misrepresentation • Breach or inducement of a breach of a duty to maintain secrecy • Espionage through electronic or other means
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Trade Secret Misappropriation
18 U.S.C. § 1839(6) (2016)
Improper Means Does not include • Reverse Engineering • Independent derivation • Any other lawful means of acquisition
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Trade Secret Misappropriation
18 U.S.C. § 1833(b) (2016)
Exceptions Government Disclosure (Whistleblower Provision) • No civil or criminal liability for disclosure made in confidence to government official or attorney for purpose of reporting suspected illegal activity
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Trade Secret Misappropriation
18 U.S.C. § 1833(b) (2016)
Exceptions Court Disclosure • Is filed in a court document, e.g., complaint, under seal.
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Trade Secret Misappropriation
18 U.S.C. § 1833(b) (2016)
Exceptions Retaliation Lawsuit • Individual filing a lawsuit against employer for retaliation of whistleblowing may disclose the trade secret to her attorney, use the trade secret information under seal in the court proceeding, and not disclose the trade secret otherwise.
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Trade Secret Misappropriation 18 U.S.C. § 1836(b) (2016) Remedies • Injunction • Damages • Ex parte seizure • Actual • Attorneys Fees • Unjust enrichment • To prevailing party • Reasonable royalty • For bad faith action • Exemplary damages (doubling award) for willful and malicious misappropriation
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Trade Secret Misappropriation
18 U.S.C. § 1836(d) (2016)
Statute of Limitations
“A civil action under subsection (b) may not be commenced later than 3 years after the date on which the misappropriation with respect to which the action would relate is discovered or by the exercise of reasonable diligence should have been discovered. For purposes of this subsection, a continuing misappropriation constitutes a single claim of misappropriation.” - See e.g., CMI Road Building, Inc. v. Iowa Parts, Inc., 920 F.3d 560 (8th Cir. 2019).
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DTSA’s Relationship with State Laws
18 U.S.C. § 1838 (2016)
“Except as provided in section 1833(b), this chapter shall not be construed to preempt or displace any other remedies, whether civil or criminal, provided by United States Federal, State, commonwealth, possession, or territory law for the misappropriation of a trade secret, or to affect the otherwise lawful disclosure of information by any Government employee under section 552 of title 5 (commonly known as the Freedom of Information Act).”
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DTSA’s Relationship with State Laws
Supplemental Jurisdiction § 1367(a)
Supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) can apply for the state law claims. A separate state law claim of trade secret misappropriation can also be raised alongside the claim under DTSA. - See, e.g., Mission Measurement Corp. v. Blackbaud, Inc., 216 F. Supp. 3d 915, 916 (N.D. Ill. Oct. 27, 2016).
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Iowa Code § 550 • Statute of Limitations (§ 550.8) • Three years • “after the misappropriation is discovered or should have been discovered by the exercise of reasonable diligence.” • Injunction (§ 550.3) • Available for actual or threatened misappropriation • Damages (§ 550.4) • Actual loss and unjust enrichment or • Reasonable royalty • Attorneys Fees (§ 550.6) • Bad faith or malicious conduct 26 www.ipmvs.com
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Preemption of other claims?
Iowa • No preemption under Iowa Act • But be wary if asserting a claim outside of Iowa or based upon foreign law
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Preemption of other claims?
Nebraska • no preemption under Nebraska Act
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Preemption of other claims?
Illinois • Statute preempts common law tort claims based upon misappropriation of confidential information that does not rise to the level of a “trade secret.” Thomas & Betts Corp. v. Panduit Corp., 108 F. Supp.2d 968, 971 (N.D. Ill. 2000)
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Preemption of other claims?
Wisconsin • Statute only preempts other remedies based upon misappropriation of “trade secrets,” and leaves untouched any other common law remedies based upon confidential information or theft of information. Burbank Grease Servs., LLC v. Sokolowski, 717 N.W.2d 781, 789 (Wis. 2006))
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Trade Secret Case Filing Trends
https://www.winston.com/images/content/2/0/v2/203824/trends-in-trade-secret-litigation-report-2020.pdf
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Trade Secret Case Filing Trends
https://www.winston.com/images/content/2/0/v2/203824/trends-in-trade-secret-litigation-report-2020.pdf
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Trade Secret – Filing Considerations
Factual Considerations
• Desire to obtain seizure? • Better for multi-jurisdictional cases • Might be better suited for cases involving foreign parties because DTSA contains extra-territorial clauses • In federal court expert witnesses will be subject to the Daubert standard - See, e.g., Axis Steel Detailing, Inc. v. Prilex Detailing LLC, 2017 U.S. Dist. LEXIS 221339 (D. Utah June 29, 2017) (delineating the elements of an ex parte seizure order under the DTSA).
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Trade Secret – Filing Considerations
Federal Question
Do you have sufficient facts to satisfy interstate commerce or foreign commerce requirement in 18 U.S.C. § 1836(b)(1)? - See, e.g., Frank N. Magid Assocs. v. Marrs, 2017 U.S. Dist. LEXIS 113702, *4 (N.D. Iowa July 20, 2017) (holding that the federal district court had original subject matter jurisdiction over the DTSA claim due to it being a federal question pursuant to 28 U.S.C. § 1331).
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Trade Secret – Filing Considerations
Federal Pleading Standard
Do you have sufficient information to satisfy the federal pleading standard, i.e., Twombly and Iqbal?
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Trade Secret – Filing Considerations
Federal Pleading Standard • Various cases in 2016 faced motions to dismiss the federal trade secret claim under Twombly and Iqbal. See for example: • Mission Measurement Corp. v. Blackbaud, Inc., 216 F. Supp. 3d 915 (N.D. Ill. Oct. 27, 2016) (NOT DISMISSED). • Adams Arms, LLC v. Unified Weapons Sys., Inc., Case No. 8:16-cv-1503-T-33AEP, 2016 WL 5391394 (M.D. Fla. Sept. 27, 2016) (DISMISSED IN PART). • HealthBanc Int’l, LLC v. Synergy Worldwide, Inc., 208 F. Supp. 3d 1193 (D. Utah Sept. 22, 2016) (DISMISSED). • M.C. Dean, Inc. v. City of Miami Beach, Florida, 199 F. Supp. 3d 1349 (S.D. Fla. Aug. 8, 2016) (DISMISSED). 36 www.ipmvs.com
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Trade Secret – Filing Considerations
Federal Pleading Standard
• Mission Measurement Corp. v. Blackbaud, Inc., 216 F. Supp. 3d 915 (N.D. Ill. Oct. 27, 2016) (NOT DISMISSED). • Facts: Mission had proprietary database of over 75,000 data points categorized into 130 social outcome types for social program evaluations. • Mission entered Confidentiality and Non-Disclosure agreement with MicroEdge for a joint project where confidential information would be passed between companies • Blackbaud purchased MicroEdge • Blackbaud through MicroEdge independently released an outcomes database that was based on Mission’s proprietary information provided throughout the joint project
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Trade Secret – Filing Considerations
Federal Pleading Standard
• Mission Measurement Corp. v. Blackbaud, Inc., 216 F. Supp. 3d 915 (N.D. Ill. Oct. 27, 2016) (NOT DISMISSED). • Procedural History: Mission sued Blackbaud and MicroEdge for trade secret misappropriation under the DTSA and Illinois Trade Secret Act (“ITSA”). • Defendants moved to dismiss for lack of sufficient particularity and failure to state a claim which can be granted.
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Trade Secret – Filing Considerations
Federal Pleading Standard
• Mission Measurement Corp. v. Blackbaud, Inc., 216 F. Supp. 3d 915 (N.D. Ill. Oct. 27, 2016) (NOT DISMISSED). • Court held that the sufficiency had been satisfied under ITSA and 7th Circuit precedent. • “Courts . . . have concluded trade secret ‘allegations to be adequate in instances where the information and the efforts to maintain its confidentiality are described in general terms.’ . . . [T]rade secrets ‘need not be disclosed in detail in a complaint alleging misappropriation for the simple reason that such a requirement would result in public disclosure of the purported trade secrets.’” Mission, at 920-21 (quoting Covenant Aviation Sec., LLC v. Berry, 15 F. Supp. 3d 813, 818 (N.D. Ill. 2014) (additional citations omitted)).
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Trade Secret – Filing Considerations Federal Pleading Standard
• Adams Arms, LLC v. Unified Weapons Sys., Inc., Case No. 8:16-cv-1503-T-33AEP, 2016 WL 5391394 (M.D. Fla. Sept. 27, 2016) (DISMISSED IN PART). • Facts: Adams Arms has numerous alleged trade secrets for making high powered firearms including, for example, “specific manufacturing processes, the tools and machinery used to make the parts, the mix of particular part types and sizes, and the mix of particular vendors for pricing for certain parts.” • Has employees and third-parties sign non-disclosure agreements among other measures to maintain secrecy. • Adams Arms and Unified Weapons entered a non-disclosure and letter of intent for the companies to work together. • Unified Weapons submitted a bid using Adam Arms’ designs, procedures, and specifications. • Unified Weapons won the bid in 2015. 40 www.ipmvs.com
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Trade Secret – Filing Considerations
Federal Pleading Standard
• Adams Arms, LLC v. Unified Weapons Sys., Inc., Case No. 8:16-cv-1503-T-33AEP, 2016 WL 5391394 (M.D. Fla. Sept. 27, 2016) (DISMISSED IN PART). • Adams Arms sued including claims under the DTSA and Florida Trade Secrets Act • Adams Arms asserted DTSA claims based on both acquisition and disclosure theories pursuant to 18 U.S.C. § 1839(5) • Notably the alleged misappropriation based on acquisition took place before the DTSA was entered. • Unified Weapons sought dismissal arguing that the statute requires a continuing misappropriation or misappropriation after the DTSA was effective.
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Trade Secret – Filing Considerations
Federal Pleading Standard
• Adams Arms, LLC v. Unified Weapons Sys., Inc., Case No. 8:16-cv-1503-T-33AEP, 2016 WL 5391394 (M.D. Fla. Sept. 27, 2016) (DISMISSED IN PART). • Court notes that the acquisition misappropriation at best took place prior to the effective date and was not a continuing action. Thus, dismissing the claim based on misappropriation by acquisition. • Arguably Unified Weapons acquired the trade secrets through proper means. • The Court held that by fulfilling the purchase bid, Unified Weapons was possibly continuing misappropriation under the disclosure/use theory. Thus, misappropriation based on disclosure/use was not dismissed.
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Trade Secret – Trial Considerations
Work with the Court Early On to Maintain Secrecy
• Statute may provide for secret proceedings • See, e.g., Iowa Code § 550.7 (“preservation of secrecy”) • Check local rules and Judge’s preferences regarding sealed and redacted pleadings • Obtain Protective Order in case • Closed courtroom for hearings and trial
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Questions?
Glenn Johnson Jonathan Kennedy [email protected] [email protected]
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Disclaimer
These materials have been prepared solely for educational purposes to contribute to the understanding of U.S. intellectual property law. These materials reflect only the personal views of the authors and are not individualized legal advice. It is understood that every business and IP situation is fact specific, and that the appropriate solution in any instance will vary. Therefore, these materials may or may not be
relevant to any particular situation. Thus, the authors and McKee, Voorhees & Sease, PLC, cannot be bound either philosophically or as representatives of their various present and future clients to the comments expressed in these materials. The presentation of these materials does not establish any form of attorney-client relationship with these authors. While every attempt was made to ensure that
these materials are accurate, errors or omissions may be contained therein, for which any liability is disclaimed.
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41 15 Section 1
C.
Thoughts on Effective Trial Lawyers
Judge Mark Bennett, Drake University
42 REINVIGORATING AND ENHANCING JURY TRIALS THROUGH AN OVERDUE JUROR BILL OF RIGHTS: A Federal Trial Judge’s View
Mark W. Bennett
ABSTRACT Juries are deeply enshrined by the U.S. Constitution and firmly embedded in our system of justice. Thus, it is surprising that jurors do not yet have something akin to their own widely adopted bill of rights. Regrettably, this is the result of too many trial judges failing to practice WWJW—“what would jurors want”—a jury-centered approach to judging. The state of Arizona, with its launch in 1993 of the Arizona Jury Project, is the pioneering jurisdiction of a more jury-centered approach. If trial judges embraced WWJW it would engender greater respect for jurors and lead to trial innovations which would significantly enhance the juror experience. These innovations would also increase the fairness of jury trials. Adopting a bill of rights for jurors improves jurors’ positive experiences and feelings about trial by jury as they participate in the purest form of democracy in action. This article proposes a Juror Bill of Rights that has been proven to achieve these goals. If adopted by courts and practiced by trial judges, jurors across the nation will exit courthouses as our greatest community ambassadors for the Sixth and Seventh Amendment rights to trial by jury. This is an important step to ensuring that vanishing civil jury trials are not, going, going, gone!
Mark W. Bennett is in his twenty-third year as a U.S. district judge in the Northern District of Iowa. He has tried jury trials as a judge in five federal jurisdictions spanning from the District of the Northern Mariana Islands to the Middle District of Florida.
43 ABSTRACT ...... 481
INTRODUCTION...... 483
I. THE ARIZONA JURY PROJECT AND THE SEVENTH CIRCUIT BAR ASSOCIATION AMERICAN JURY PROJECT ...... 491
II. RIGHT NO. I: JURORS HAVE THE RIGHT NOT TO HAVE THEIR TIME WASTED BY JUDGES; LAWYERS; WITNESSES; AND UNNECESSARY, CUMULATIVE, AND EXCESSIVE EVIDENCE ...... 493 A. Just Say No to Sidebars ...... 494 B. Always Start and End Court on Time—Including Breaks ...... 495 C. Computer Generated Random Ordering of Potential Jurors for the Start of Jury Selection ...... 496 D. Efficient and Snappy Voir Dire...... 496 E. Hard Time Limits on Opening Statements and Closing Arguments ...... 497 F. Strong Judicial Oversight of the Final Pre-Trial Conference to Eliminate Redundant, Cumulative, and Excessive Witnesses and Exhibits ...... 498
III. RIGHT NO. II: JURORS HAVE THE RIGHT IN JURY SELECTION IN EVERY CIVIL CASE TO BE TOLD EXACTLY HOW LONG THE TRIAL WILL LAST—MINUS DELIBERATIONS ...... 499
IV. RIGHT NO. III: JURORS HAVE THE RIGHT IN EVERY TRIAL TO THEIR OWN SET OF PLAIN ENGLISH “FINAL” JURY INSTRUCTIONS PRIOR TO OPENING STATEMENTS ...... 505
V. RIGHT NO. IV: JURORS HAVE THE RIGHT TO HAVE THEIR TRIAL JUDGE THOUGHTFULLY CONSIDER INNOVATIONS THAT ENHANCE THEIR EXPERIENCE AND IMPROVE THE FAIRNESS OF THE TRIAL ...... 509 A. Juror-Friendly Daily Trial Schedule ...... 509 B. Visual Voir Dire ...... 509 C. Juror Note-Taking ...... 510 D. Juror Questioning of Witnesses ...... 511 E. Juror Electronic Retrieval of Evidence During Deliberations ...... 515 F. Debriefing the Jury Following Their Verdict...... 516
44 G. Empowering the Jury and Obtaining Crucial Feedback—Juror Evaluations of the Judge, Lawyers, and Trial Process ...... 518 H. Interim Summaries or Arguments by Counsel in Complex or Lengthy Civil Jury Trials ...... 518 I. Allowing Jurors to Discuss the Evidence Among Themselves Before Deliberations ...... 520
VI. RIGHT NO. V: JURORS HAVE THE RIGHT TO JUROR CREATURE COMFORTS ...... 521 A. Comfortable Seating in the Jury Box ...... 522 B. Stretch Breaks ...... 522 C. More Frequent Stretch Breaks and Standing to Listen to Testimony ...... 522 D. Nutritious Snacks ...... 523 E. Microwave Oven and Refrigerator ...... 523 F. Cookies ...... 523
CONCLUSION ...... 523
INTRODUCTION “The most stunning and successful experiment in direct popular sovereignty in all history is the American jury.” – Judge William Young, District of Massachusetts1 A jury trial for far too many lawyers, especially “litigators,” is like going to heaven: everyone claims they want to go, just not today.2 No one disputes
1. William Young, Vanishing Trials, Vanishing Juries, Vanishing Constitution, 40 SUFFOLK U. L. REV. 67, 69 (2006); see also Akhil Reed Amar, Reinventing Juries: Ten Suggested Reforms, 28 U.C. DAVIS L. REV. 1169, 1169 (1995) (“No idea was more central to our Bill of Rights—indeed, to America’s distinctive regime of government of the people, by the people, and for the people—than the idea of the jury.”); Andrew Guthrie Ferguson, Jury Instructions as Constitutional Education, 84 U. COLO. L. REV. 233, 243 (2013) (“Trial by jury was considered such an important natural right that a restriction on the use of jury trials during the colonial period helped ignite the American Revolution.”). 2. I first heard this joke told by a terrific Texas trial lawyer and presenter, Grace Weatherly, of Wood, Thacker & Weatherly, P.C. in Dallas, at the American Board of Trial Advocates (ABOTA) National Jury Summit in San Francisco on April 30, 2015, where I was presenting on my juror-centered approach to judging. She attributed the line to a Texas trial court judge. ABOTA “is a national association of experienced trial lawyers and judges dedicated to the preservation and promotion of the civil jury trial right provided by the Seventh Amendment to the U.S. Constitution.” AM. BD. TRIAL ADVOCATES, https://www.abota.org (last visited Oct. 16,
45 that lawyers do not try cases as often as they used to. Thus, much has been written and often bemoaned about the declining, if not vanishing, civil jury trial.3 I recently observed: “In the span of less than eighty years, our federal
2016). “First and foremost, ABOTA works to uphold the jury system by educating the American public about the history and value of the right to trial by jury.” Sadoff Receives ABOTA Media Award for “Hot Coffee,” AM. BD. TRIAL ADVOCATES, https://www.abota.org/index.cfm?pg=SaladoffMediaAwardNR (last visited Oct. 16, 2016). 3. Mark W. Bennett, Eight Traits of Great Trial Lawyers: A Federal Judge’s View on How to Shed the Moniker “I Am a Litigator,” 33 REV. LITIG. 1, 2 (2013) [hereinafter Bennett, Eight Traits] (“Many articles have been written about the vanishing civil jury trial, and I recently wrote about the rise of the ‘litigation industry’ and the demise of trial lawyers through a mock obituary for the death of the American trial lawyer.”); John H. Langbein, The Disappearance of Civil Trial in the United States, 122 YALE L.J. 522, 524 (2012) (“A striking trend in the administration of civil justice in the United States in recent decades has been the virtual abandonment of the centuries-old institution of trial. . . . [I]n American civil justice, we have gone from a world in which trials, typically jury trials, were routine, to a world in which trials have become ‘vanishingly rare.’”); Brian J. Ostrom et al., Examining Trial Trends in State Courts: 1976–2002, 1 J. EMPIRICAL LEGAL STUD. 755, 755 (2004) (despite a growing number of dispositions finding a decrease, often significant, in civil jury trials in state courts); Xavier Rodriguez, The Decline of Civil Jury Trials: A Positive Development, Myth, or the End of Justice as We Know It?, 45 ST. MARY’S L.J. 333, 334 (2014) (Judge Rodriguez noted “it is widely acknowledged that the percentage of federal civil cases currently disposed of by a judgment at trial is about 1.2%.”). Professor Robert P. Burns has summarized the startling statistics on the vanishing civil jury trial in federal courts: In 1938, about 20% of federal civil cases went to trial. By 1962, the percentage was down to 12%. By 2009, the number sunk to 1.7%. The percentage of jury trials in federal civil cases was down to just under 1%, and the percentage of bench trials was even lower. So between 1938 and 2009, there was a decline in the percentage of civil cases going to trial of over 90% and the pace of the decline was accelerating toward the end of that period until very recently, when there was almost literally no further decline possible.
Robert P. Burns, Advocacy in the Era of the Vanishing Trial, 61 U. KAN. L. REV. 893, 893–94 (2013) (“It has often been remarked ruefully that ‘trial lawyers’ have almost all become ‘litigators.’”); see also Mark W. Bennett, Judges’ Views on Vanishing Civil Trials, 88 JUDICATURE 306, 307 (2005) (“Summary Judgment is now the Holy Grail of litigators.”); Marc Galanter, The Hundred Year Decline of Trials and the Thirty Years War, 57 STAN. L. REV. 1255, 1255 (2005) (“Although it defies popular images of the ubiquity of trials, an abundance of data shows that the number of trials—federal and state, civil and criminal, jury and bench—is declining. The shrinking number of trials is particularly striking because virtually everything else in the legal world is growing—the population of lawyers, the number of cases, expenditures on law, the amount of regulation, the volume of authoritative legal material, and not least the place of law, lawyers, and courts in public consciousness.”) (footnotes omitted); Patrick E. Higginbotham, So Why Do We Call Them Trial Courts?, 55 SMU L. REV. 1405, 1423 (2002) (“We need trials, and a steady stream of them, to ground our normative standards . . . . Trials reduce disputes, and it is a profound mistake to view a trial as a failure of the system. A well conducted trial is its crowning achievement.”). But see D. Brock Hornby, The Business of the U.S. Courts, 10 GREEN BAG 453, 467–68 (2007) (“Law professors and judges should stop bemoaning
46 civil justice system has morphed from trial by ambush with no formal discovery, but significant numbers of civil jury trials, to the passage of the Rules and the hot mess in which we now find ourselves.”4 I described the transition from trial by ambush to trial by avalanche, but concluded what we really have now is “an un-Godly expensive and protracted ‘litigation’ by avalanche industry.”5 However, civil and criminal jury trials are still tried in state and federal courts and remain “the purest form of democracy in action.”6 Trial by jury has a rich tradition in our country in no small part because the framers of our Constitution understood the importance of jury trials to our new nation. They mention juries three times in the Constitution and Bill of Rights7—with no fine print or expiration date. Thus, jurors were a central institution “in the creation of America.”8 Jury trials are so ingrained in our nation’s history and contemporary culture that they often have their own shorthand names—the Scopes Monkey trial; the trial of Sacco and Vanzetti; the Lindberg baby kidnapping case; the Scottsboro Boys trial; the Ford Pinto disappearing trials. Trials have gone the way of landline telephones—useful backups, not the instruments primarily relied upon, if ever they were. Dramatists enjoy trials. District judges enjoy trials. Some lawyers enjoy trials. Except as bystanders, ordinary people and businesses don’t enjoy trials, because of the unacceptable risk and expense . . . . Trials as we have known them . . . are not coming back.”). 4. Mark W. Bennett, Essay: The Grand Poobah and Gorillas in Our Midst: Enhancing Civil Justice in the Federal Courts—Swapping Discovery Procedures in the Federal Rules of Civil and Criminal Procedure and Other Reforms like Trial by Agreement, 15 NEV. L.J. 1293, 1302–03 (2015). 5. Id. The litigation industry includes: “deep sea fishing discovery expeditions, virtually unlimited obstructionist discovery tactics, a parallel cottage industry of discovery companies, e- discovery consultants, armies of contract lawyers, and highly-compensated associates and junior partners of litigation firms who almost exclusively replace real trial lawyers in the discovery process.” Id. at 1303. 6. Young, supra note 1, at 69 (quoting Raymond J. Brassard, Juries Help Keep Our Democracy Working, BOS. GLOBE, May 1, 2003, at A19 (quoting a letter the author received from a juror)); see also Antoinette Plogstedt, E-Jurors: A View from the Bench, 61 CLEV. ST. L. REV. 597, 601 (2013) (describing the virtues of jury trials as injecting community values into trials, serving as an important safeguard against government power, protecting citizens from potential bias of judges, educating citizens about their rights and responsibilities, encouraging citizen participation in deliberative democracy, and promoting respect for the rule of law). 7. First, near the end of U.S. CONST. art. III, § 2: “The trial of all crimes, except in cases of impeachment, shall be by jury.” Second, in the Sixth Amendment for “an impartial jury of the state and district wherein the crime shall have been committed” for criminal defendants. U.S. CONST. amend. VI. Third, in the Seventh Amendment for civil cases “[i]n suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” U.S. CONST. amend. VII. 8. Andrew Guthrie Ferguson, The Jury as Constitutional Identity, 47 U.C. DAVIS L. REV. 1105, 1115 (2014) (discussing how contemporary juries have lost their constitutional identity as constitutional actors in part because of well-meaning jury trial innovations).
47 case; the McDonalds’ Coffee case; the Menendez brothers trial; the O.J. cases (both criminal and civil); and the Boston Marathon Bombing trial. Despite the decline of jury trials across the United States, approximately eight million Americans report for jury duty each year.9 Another three million or so are summoned each year for jury duty, but do not show up.10 With the rich history and current cultural obsession with jury trials, like the sport of boxing there seems to be a “Trial of the Century” at least every few years,11 virtually nothing has been written about the rights of jurors in any of these or other trials.12
9. Melanie D. Wilson, Juror Privacy in the Sixth Amendment Balance, 2012 UTAH L. REV. 2023, 2023 (2012). 10. Id.; see also Robert G. Boatright, Why Citizens Don’t Respond to Jury Summonses and What Courts Can Do About It, 82 JUDICATURE 156, 156–57 (1999) (explaining that “the number of citizens who merely ignore their summonses is increasing” and discussing summoned juror non-response rates of “20 percent in state courts and 11 percent in federal courts”). I do have a remedy that works for jurors who do not show up. See infra note 12. 11. Examples include: Jodi Arias murder trials (2013 & 2015); George Zimmerman- Trayvon Martin murder trial (2013); Dr. Conrad Murray trial (2011); Casey Anthony murder trial (2009); Phil Spector murder trials (2007 & 2009); Robert Blake murder trial (2005); Michael Jackson child molestation trial (2005); Scott Peterson murder trial (2004–2005); impeachment and trial of President Bill Clinton (1998-99); Timothy McVeigh Oklahoma City bombing trial (1997); John Gotti trial (1995); O.J. Simpson murder trial (1995); Mike Tyson rape trial (1992); Rodney King police officers’ trial (1992). 12. The only published juror bill of rights for any court appears to be the one on the Arizona Supreme Court website: Judges, attorneys and court staff shall make every effort to assure that Arizona jurors are: 1. Treated with courtesy and respect. 2. Afforded privacy and security safeguards. 3. Randomly selected for jury service without regard for race, ethnicity, gender, age, religion, physical disability, sexual orientation or economic status. 4. Provided with comfortable and convenient facilities, with accommodations to address the special needs of jurors with physical disabilities. 5. Informed of trial schedules as often as possible. 6. Informed of the trial process and of the applicable law in plain and clear language. 7. Permitted to take notes during trial and to ask questions of witnesses or the judge, as permitted by law, and to have them answered where appropriate. 8. When the law permits, told of the circumstances under which they may discuss the evidence during the trial among themselves in the jury room, while all are present, as long as they keep an open mind until a verdict is rendered. 9. Given answers, as permitted by law, to questions and requests that arise during deliberations regarding the law as it relates to their specific case. 10. Offered assistance if they experience serious anxiety, stress, or trauma as a result of jury service.
48 I first started thinking about the rights of jurors early in my judicial career, which sprouted the seeds of my jury-centered approach to judging.13 During the middle of a trial early in my career as a U.S. district judge, one of the jurors, an elderly woman in the front row from a small northwestern Iowa town, raised her hand because she had a question. So, not to be impolite and lacking other more obvious or better options, I called on her. She proceeded to ask in a clear and strong voice why everyone in the courtroom—me, the lawyers, witnesses, and my law clerk—had water but the jurors did not? A great question with no great answer other than it had always been done that way. An unacceptable answer for me. My lifelong motto, a paraphrase of a Thomas Edison quote, flashed before me: “There is a better way to do everything—go find it”14 and I instantly realized that this juror had found a better way. I made a deal on the spot with her and the other jurors—as long as they did not bring in alcoholic beverages, they could bring into the courtroom anything they wanted to drink. Years later, when we were updating the technology in the courtroom, we had cup holders installed, matching the courtroom’s historic Art Deco decor. The question about jurors being able to drink in the courtroom was the genesis of my WWJW approach
11. Permitted to express concerns, complaints and recommendations to courthouse authorities. 12. Compensated in a timely manner for jury service. Juror Bill of Rights, ARIZ. JUD. BRANCH, https://www.azcourts.gov/juryduty/JurorBillofRights.aspx (last visited Oct. 16, 2016). The origin of this Bill of Rights appears to be ARIZ. SUP. CT. COMM. ON MORE EFFECTIVE USE OF JURIES, JURORS: THE POWER OF 12, at 9 (1994) [hereinafter THE POWER OF 12] https://www.azcourts.gov/Portals/15/Jury/Jury12.1.pdf (This is a comprehensive report to study, evaluate, make recommendations, and monitor ways to improve jury trials, the effectiveness of juries, and the quality of their verdicts). 13. My jury-centered approach to judging is the focus of a law review article written by a former law clerk, while clerking for me, who is now an accomplished Iowa trial lawyer. Kirk W. Schuler, In the Vanguard of the American Jury: A Case Study of Juror Innovations in the Northern District of Iowa, 28 N. ILL. U. L. REV. 453, 453 (2008) (discussing many of my jury trial innovations to improve the juror experience). However, this article starts with my view of jurors’ responsibilities before it discusses their “rights” at the courthouse: United States District Court Judge Mark W. Bennett is serious about jury service. Just ask James Ahart. Mr. Ahart, a United States Postal worker, twice failed to appear for jury duty. As a result, he was called in to court to show good cause for his absence. After finding none, the judge sent him to jail for the night directly from the hearing—without a toothbrush, without any champagne, without any party favors, and without his wife, who accompanied him to the courthouse. It was New Year’s Eve. Id. at 454. 14. Id. at 484.
49 to judging: What Would Jurors Want?15 The central principle of this approach is that improving a juror’s day in court is the most important innovation and virtually all other innovations flow from it. This article represents the evolution and current status of this more than two-decade approach to jury- centered judging. It is curious why more judges, lawyers, and scholars have not written about a practical bill of rights for jurors.16 Two noted Texas trial lawyers, who have never appeared before me but have had a huge impact on my judging through a law review article they wrote, may have the answer, at least for judges: “The final obstacle to sensible practices to improve the conduct of jury trials is the inherent conservatism of the bench. Judges ‘have seldom been accused of being progressive.’ They, as members of a tradition-driven institution, embrace what has been done before and are sometimes skeptical of new approaches.”17 As one of the nation’s leading experts on jury trial innovations has written, “[u]nless courts are willing to commit substantial
15. Id. at 479; see also id. at 457–58 (“Judge Bennett’s first and foremost jury innovation: that the juror’s day in court is every bit as important as the litigant’s.”). 16. Judge James F. Holderman of the Northern District of Illinois and his then senior law clerk wrote a pioneering and enlightening article about how jury reforms will help the current and next generations of jurors be more fully engaged in jury trials. James F. Holderman & S. Ann Walls, As Generations X, Y and Z Determine the Jury’s Verdict, What Is the Judge’s Role?, 58 DEPAUL L. REV. 343, 343 (2009). Judge Holderman wrote with authority because he personally “tested,” as part of his role as co-chair of the Seventh Circuit Bar Association American Jury Project, many of the concepts I use in jury trials and write about in this article. Id. at 346–47. No one who writes about jury trial innovations has catalogued a bill of rights for jurors. 17. Stephen D. Susman & Thomas M. Melsheimer, Trial by Agreement: How Trial Lawyers Hold the Key to Improving Jury Trials in Civil Cases, 32 REV. LITIG. 431, 439 (2013) (footnotes omitted). Their brilliant article is now required reading for all lawyers who appear in civil cases assigned to me. My standard trial case management order contains the following language: III. TRIAL BY AGREEMENT: Within thirty (30) days of this order, each lawyer who has appeared on behalf of any party, and within thirty (30) days of any other lawyer appearing on behalf of any party, must file a short affidavit that they have read the following article: Stephen D. Susman and Thomas M. Melsheimer, Trial by Agreement: How Trial Lawyers Hold the Key to Improving Jury Trials in Civil Cases, 32 REV. LITIG. 431 (2013). Each lawyer must also state in their affidavit whether or not they are willing to make a good faith effort to apply the basic principles of this article and the concepts contained in Pretrial Agreements Made Easy, found at http://trialbyagreement.com/pretrial-agreements/pretrial-agreements-made- easy/ to this case. I respect the lawyers’ right not to follow these principles, but the failure to timely file the affidavit will result in a $250.00 sanction. The money will go to the court’s “Library Fund” and will be used for the benefit of the bar.
50 levels of judicial leadership and educational efforts to jury improvement, they face an uphill battle to overcome bench and bar resistance to new ideas.”18 Also, as trial judges are replaced with more managerial and settlement oriented judges, whose experience is primarily as “litigators” rather than “trial lawyers,” it is hardly surprising that less thought, emphasis, and judicial leadership is given to the rights and concerns of trial jurors or, for that matter, to jury trials at all.19 While speaking at an anti-trust seminar a few years ago, I was shocked that a judicial colleague unabashedly stated out loud that “a jury trial is a failure of the system.”20 Indeed, this is exactly the opposite view
18. Paula L. Hannaford-Agor, Jury Nullification? Judicial Compliance and Non- Compliance with Jury Improvement Efforts, 28 N. ILL. U. L. REV. 407, 424 (2008). 19. Susman & Melsheimer, supra note 17, at 433 (“Today, trial lawyers may often encounter a ‘settlement judge’—a judge who is willing to cajole, exhort, or even intimidate the parties into a settlement.”). All trial lawyers know first-hand judges like this. A recent law clerk informed me: in her first-year civil procedure class, her professor instructed the class that a jury trial was a failure of the system—a comment the students all dutifully typed into their notes. Is it a surprise, then, that lawyers and judges gravitate towards summary judgment, when they are indoctrinated in law school to think that jury trials are an abomination? Mark W. Bennett, Essay: From the “No Spittin’, No Cussin’ and No Summary Judgment” Days of Employment Discrimination Litigation to the “Defendant’s Summary Judgment Affirmed Without Comment” Days: One Judge’s Four-Decade Perspective, 57 N.Y. L. SCH. L. REV. 685, 707 n.106 (2012); see also THE AM. COLL. OF TRIAL LAWYERS TASK FORCE ON DISCOVERY & CIVIL JUSTICE & THE INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., REFORMING OUR CIVIL JUSTICE SYSTEM: A REPORT ON PROGRESS AND PROMISE 14 (2015) [hereinafter A REPORT ON PROGRESS AND PROMISE] (“Knowledge of the trial process is critical for judges responsible for conducting the trial process. We urge that consideration of trial experience be an important part of the judicial selection process. Judges who have trial experience, or at least significant case management experience, are better able to manage their dockets and move cases efficiently and expeditiously. Nearly 85 percent of our respondents said that only individuals with substantial trial experience should be chosen as judges.”). For a thorough analysis of the transition of federal judges from adjudicators to managers see the classic article, Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374, 445 (1982) (“I want to take away trial judges' roving commission and to bring back the blindfold. I want judges to balance the scales, not abandon them altogether in the press to dispose of cases quickly. No one has convincingly discredited the virtues of disinterest and disengagement, virtues that form the bases of the judiciary's authority. Our society has not yet openly and deliberately decided to discard the traditional adversarial model in favor of some version of the continental or inquisitorial model. Until we do so, federal judges should remain true to their ancestry and emulate the goddess Justicia. I fear that, as it moves closer to administration, adjudication may be in danger of ceasing to be.”). 20. Bennett, supra note 19, at 707 (not surprisingly, the judge was from a big firm “litigation” background.); Stephen B. Burbank & Stephen N. Subrin, Litigation and Democracy: Restoring a Realistic Prospect for Trial, 46 HARV. C.R.-C.L. L. REV. 399, 399 (2011) (internal quotations omitted) (“As early as 1971, one federal district court judge candidly said: [M]y goal
51 of Principle 11 “Trials represent a success, not a failure, of our civil justice system,” of the leading American College of Trial Lawyers.21 In one recent important national study, a surprising fifty-seven percent of the trial lawyers polled thought that trial court judges did not like taking cases to trial.22 But, for those of us in the legal profession who are deeply passionate about the Sixth and Seventh Amendments’ right to trial by jury, implementing a bill of rights for jurors is critical. American jury scholar Professor Andrew Guthrie Ferguson has thoughtfully warned that jury trial innovations reinforce the view that contemporary juries have become a too “task oriented” enterprise and that innovations have negatively impacted the prior sense of jurors’ “robust sense of constitutional identity.”23 So judges should not elevate the efficiency that jury trial innovations bring over teaching jurors about the importance of their historic constitutional role.24 If we truly want and expect a higher response rate from summoned potential jurors, and for them to be the best ambassadors for our civil justice system, a juror bill of rights needs to be adopted and practiced. I urge the following: I. Jurors Have the Right Not to Have Their Time Wasted by Judges, Lawyers, Witnesses and Unnecessary, Cumulative, and Excessive Evidence. II. Jurors Have the Right in Jury Selection in Every Civil Case to Be Told Exactly How Long the Trial Will Last—Minus Deliberations. III. Jurors Have the Right in Every Trial to Their Own Set of Plain English Final Jury Instructions Prior to Opening Statements. IV. Jurors Have the Right to Have Their Trial Judge Thoughtfully Consider Innovations that Enhance Their Experience and Improve the Fairness of the Trial. V. Jurors Have the Right to Juror Creature Comforts. Before turning to an explanation of each specific right, no article about the rights of jurors or jury trial innovations would be complete without discussing
is to settle all my cases . . . . Most of the time when I try a case I consider that I have somehow failed the lawyers and the litigants.”). 21. A REPORT ON PROGRESS AND PROMISE, supra note 19, at 14. 22. THE AM. COLL. OF TRIAL LAWYERS TASK FORCE ON DISCOVERY & THE INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., INTERIM REPORT (INCLUDING 2008 LITIGATION SURVEY OF THE FELLOWS OF THE AMERICAN COLLEGE OF TRIAL LAWYERS) A-6 (2008). 23. Ferguson, supra note 8, at 1136. 24. Ferguson, supra note 1, at 233, 299–303 (Professor Ferguson suggests a Model Jury Instruction as a “constitutional teaching moment” for jurors to reclaim their sense of constitutional awareness and thereby strengthen and invigorate contemporary jury service).
52 the Arizona Jury Project25 and the Seventh Circuit Bar Association American Jury Project (Seventh Circuit Project).26 These two projects represent important empirical research on jury trials in state (the Arizona Jury Project) and federal (the Seventh Circuit Project) courts.
I. THE ARIZONA JURY PROJECT AND THE SEVENTH CIRCUIT BAR ASSOCIATION AMERICAN JURY PROJECT The Arizona Jury Project was created by the Arizona Supreme Court on April 14, 1993, when it created the Committee on More Effective Use of Juries.27 The principle concerns that gave rise to this project were “lack of jury representativeness in an increasingly diverse society, enforced jury passivity during trials and unacceptably low levels of juror comprehension of the evidence and of the court’s instructions.”28 The Committee was made up of former jurors, lawyers who practice both civil and criminal law, court administrators, academics, and trial and appellate judges.29 A key to the success of this project was that the Arizona Supreme Court directed the Committee to consult with current social science studies and to be creative— to think outside the traditional jury trial box and not be bound by traditions and myths that heretofore had defined the jury trial process.30 The Committee’s report included fifty-five specific recommendations, including new ways to improve juror comprehension and to increase juror participation in their process of fact-finding.31 Fifteen of the recommendations were adopted by the Arizona Supreme Court and became effective through rule changes on December 1, 1995.32 The most controversial recommendation adopted by the Arizona Supreme Court was
25. THE POWER OF 12, supra note 12. 26. AM. JURY PROJECT COMM’N, SEVENTH CIRCUIT BAR ASS’N, SEVENTH CIRCUIT AMERICAN JURY PROJECT FINAL REPORT (2008). 27. THE POWER OF 12, supra note 12, at 2. 28. Id. 29. Id. The Committee met eleven times in eighteen months and had about twenty sub- committees. Id. 30. B. Michael Dann & George Logan III, Jury Reform: The Arizona Experience, 79 JUDICATURE 280, 280 (1996). 31. Of the fifty-five recommendations, twenty-eight related specifically to trial procedures. Shari Seidman Diamond et al., Juror Discussion During Civil Trials: Studying an Arizona Innovation, 45 ARIZ. L. REV. 1, 4 (2003). For a complete list of the fifty-five recommendations, see Dann & Logan, supra note 30, at 281–82. For both a list and a discussion of each recommendation, see THE POWER OF 12, supra note 12, at 33–133. 32. Dann & Logan, supra note 30, at 281.
53 allowing juries to discuss the evidence during breaks in the trial when all jurors were present rather than waiting until after closing arguments to begin their discussions of the evidence during deliberations.33 The Seventh Circuit Project was an outgrowth of the American Bar Association American Jury Project which “produced a single set of modern jury principles, entitled Principles for Juries and Jury Trials, ‘ABA Principles’ that the ABA proposed be used as a model for state and federal trial courts conducting jury trials across the country.”34 The revised ABA Principles were approved by the ABA House of Delegates in February 2005 at the ABA midyear meeting.35 The Seventh Circuit Project self-proclaimed it “took a leading role nationwide in testing the usefulness . . . and benefits”36 of the ABA Principles in “fifty jury trials . . . beginning in October of 2005 and continuing through April 2008.”37 The Seventh Circuit Project was overseen by the Seventh Circuit Bar Association American Jury Project Commission.38 The Commission comprised one Seventh Circuit judge, many district court judges throughout the Seventh Circuit (some of the finest trial court judges in the nation), and outstanding trial lawyers and nationally recognized law professors.39 Twenty- two federal district judges participated in the fifty jury trials that formed the
33. Diamond, et al., supra note 31, at 5. The Arizona Supreme Court rejected the Committee’s proposal to allow early discussion of the evidence in both criminal and civil jury trials, adopting it only for civil jury trials. Id. at 6. Rule 39(f) of the Arizona Rules of Civil Procedure was adopted as follows: If the jurors are permitted to separate during the trial, they shall be admonished by the court that it is their duty to not converse with or permit themselves to be addressed by any person on any subject connected with the trial; except that the jurors shall be instructed that they will be permitted to discuss the evidence among themselves in the jury room during recesses from the trial when all are present, as long as they reserve judgment about the outcome of the case until deliberations commence. Notwithstanding the foregoing, the jurors’ discussions of the evidence among themselves during recesses may be limited or prohibited by the court for good cause. Id. The most innovative component of the Project was the Arizona Supreme Court’s willingness to allow the videotaping of 50 civil jury trials and the jury discussions and deliberations to test the effectiveness of Rule 39(f). Id. at 9–78. 34. AM. JURY PROJECT COMM’N, supra note 26, at 9. 35. Id. 36. Id. 37. Id. 38. Id. at 1, 9. 39. See id. at 1–7 (a complete list of the Commissioners).
54 basis for the Project.40 In total, four hundred and thirty-four jurors, eighty-six lawyers, and twenty-two federal district judges completed questionnaires.41 This was one of the most comprehensive studies of jury trial innovations in the federal courts as it involved data from trial judges, trial lawyers, and jurors in real jury trials spread across all but one of the district courts in the Seventh Circuit.42 The Seventh Circuit Project put into practice seven jury innovations.43 The results of the Arizona Jury Project and the Seventh Circuit Project are discussed where relevant to a specific juror bill of rights.
II. RIGHT NO. I: JURORS HAVE THE RIGHT NOT TO HAVE THEIR TIME WASTED BY JUDGES; LAWYERS; WITNESSES; AND UNNECESSARY, CUMULATIVE, AND EXCESSIVE EVIDENCE If you ask jurors what their number one complaint is about jury trials, as I have for more than twenty-five years,44 you will learn that it is the way lawyers waste the jurors’ valuable time with excessive repetition.45 As a
40. Id. at 8. 41. Id. at 9, 13. 42. Id. at 9–14. 43. 1) Twelve-person juries; 2) jury selection questionnaires; 3) preliminary substantive jury instructions; 4) trial time limits; 5) questions by the jury during trial; 6) interim statements to the jury by counsel; and 7) enhancing jury deliberations. Id. at 10; see also Holderman & Walls, supra note 16, at 346–47 (discussing Judge Holderman’s role as a co-chair of the Seventh Circuit Bar Association American Jury Project Commission). 44. For the twenty-five years, I have been on the federal bench, as a magistrate judge for nearly three years, and as a district judge for over twenty-two years, I have not only personally “debriefed” every jury after trial, but have also given every juror a questionnaire to take home, fill out, and mail back in a return, self-addressed, stamped envelope. The purpose of the “debriefing” is twofold. First, I try to answer any questions jurors may have about their time in court. Second, I personally thank them for their service—in the less formal setting of their juror deliberation room. The questionnaire allows the jurors to anonymously evaluate the performances of the lawyers and me as the trial judge and the clarity of the jury instructions; to comment on the use of courtroom technology and the courtesy of the courthouse staff; and to communicate complaints about or suggestions for improvement of our trial process. During jury selection, I inform the jurors of the importance of these questionnaires as it is my belief that it encourages them to be better jurors—knowing I value their input and feedback. Over the last quarter century, repetition by the lawyers has consistently and overwhelmingly been jurors’ number one complaint. 45. See Shari Seidman Diamond, What Jurors Think: Expectations and Reactions of Citizens Who Serve as Jurors, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 282, 289 (Robert E. Litan ed., 1993) (observing that a common juror complaint is “repetition and redundancy of trial testimony”); D. Brock Hornby, How Jurors See Us, 14 ME. B.J. 174, 177 (1999) (“Most
55 result, jurors don’t feel respected—which is something that we as judges and lawyers should want them to be.46 Due to the steady decline of real trial lawyers, much has been written about the tremendous waste of time and money perpetrated by what I have labeled as the massive rise of the “litigation industry.”47 As Texas trial lawyers Susman and Melsheimer have noted: “[t]he inefficiencies practiced by lawyers litigating cases before trial are not made harmless” if the case is tried to a jury.48 Indeed, in a jury trial, Susman and Melsheimer continue, “those same inefficiencies will manifest themselves in an excessive use of exhibits, unnecessarily lengthy deposition testimony, and a bloated interrogation process that, in our experience, leads to the single most repeated comment by jurors after a trial has concluded: ‘There was too much repetition.’”49 There has never been a written statement about jury trials that I agree with more. The best way to show increased respect and admiration for jurors is to not waste their valuable time. Because trial judges are not exempt from wasting jurors’ time, here are six innovative solutions to that problem, starting with my tried and true innovation of just saying no to attorney requested sidebars.
A. Just Say No to Sidebars I started this practice over fifteen years ago in a case with Chicago litigators who could not perform the basic functions of trial lawyers without commonly, jurors complain about repetitive questioning, excessive objections or other delaying tactics, and general slowness in the presentation of testimony and exhibits.”). 46. In an article under the sub-heading Maybe We Really Do Not Respect Jurors like We Say We Do, a state court judge wrote about a lawyer on the committee to remodel the courthouse, noting the absence of a jury assembly room in the new plans, who commented to the judge: “They were just jurors—they can meet in some room somewhere.” Timothy G. Hicks, The Jury Reform Pilot Project—The Envelope Please, MICH. B.J., June 2011, at 40, 42. Professor Akhil Reed Amar has observed that allowing jurors to take notes, to ask questions of witnesses, and instructing jurors in plain English at the outset of a case demonstrates respect for them. Amar, supra note 1, at 1185–86. Several years ago, while attending a meeting in Washington D.C., I stopped in to a civil jury employment discrimination trial in federal court to watch a defense lawyer friend of mine. The jury was sent out several times while I was observing and neither the judge nor the lawyers stood or paid any attention to the jurors when they exited or entered the courtroom. It was as if they were an unnecessary and unwelcome appendage to the proceeding. Perhaps they were just reflecting long-standing local culture. I was shocked, especially given both the judge and the lawyers were outstanding with superb and well-deserved reputations. 47. See Bennett, supra note 4, at 1307. I also have devised the Bennett Multiphasic Litigator Inventory—a ten factor test to conclusively distinguish between “real trial lawyers” and “litigators.” Id. at 1308. 48. Susman & Melsheimer, supra note 17, at 434. 49. Id.
56 first requesting sidebars. After several ridiculous sidebars, one of the lawyers on the team—litigators in my experience cannot function solo—requested another sidebar. “May we approach?” he bellowed. I looked him right in the eyes and politely, but firmly, said “No.” He responded, “Excuse me your Honor, perhaps you didn’t hear me. We asked to approach so we could have a sidebar.” I retorted, “That’s exactly what I thought you wanted and the answer from now on is NO!” The jurors roared with laughter, delight, and relief.50 That began my “Just Say No to Sidebars” innovation. While I warn lawyers in my trial management order that I practice “Just Say No to Sidebars,” most first-timers do not believe it and proceed to request a sidebar anyway. I say “NO” and the most amazing thing happens. In fifteen years of saying “NO,” not once has a lawyer made a record during the next break, or at any time in the trial, on what was so important that they needed a sidebar or on how my “NO” prejudiced them. Not once. Upon getting judicial sea legs, I highly recommend the practice. The jurors will love it and it will save a boatload of time. Of course, the rule is not reciprocal. Judges should utilize sidebars anytime if it helps move the trial along or prevents error.51
B. Always Start and End Court on Time—Including Breaks I explain to counsel at the final pre-trial conference (FPTC) how important it is to me that the jurors not be kept waiting. My aspirational goal for every trial, no matter its length, is to never keep the jury waiting—even for a single minute. To achieve that goal, I need the lawyers to buy into it. If we fail to achieve the goal, I am not smiling. There is nothing more insulting and, I believe, disrespectful to jurors than to keep them waiting for court to start or to make them stay late. Judges and lawyers sometimes forget that we volunteered for our jobs, the jurors did not. If the trial day starts at 8:30 a.m., like mine does, that means the jurors are in the box at exactly 8:30 a.m., not 8:31 a.m., 8:32 a.m. or 9:15 a.m. I meet with counsel before trial each morning to resolve any problems they know of or can foresee. If problems arise in the evening or early morning, counsel has my email address and cell
50. In my “debriefing” of the jury after the verdict, jurors often tell me how much they detest sidebars and how appreciative they are when I put an end to them. 51. On the rare occasion that I call a sidebar, it is when a lawyer is repetitive or is simply going too slow—obviously boring the jurors to tears. The sidebar goes like this: “Counsel, please look at the jury as you ask your next question. You lost them a few minutes ago with your boring, repetitive questioning so, if you agree after looking at them, I suggest you move on.” This friendly nudge works wonders. I would rather just dispense with the sidebar and simply ask the jurors to raise their hands if they are bored and want the lawyer to wrap it up, but I leave that innovation for another judge to try.
57 phone number. I am always willing to meet as early as needed to resolve any and all issues to ensure the jury is in the box at exactly 8:30 a.m.
C. Computer-Generated Random Ordering of Potential Jurors for the Start of Jury Selection Walk into most courtrooms when jury selection is getting started and you will see time being wasted by a clerk calling names for the initial group of prospective jurors to move from the back of the courtroom to be seated in and around the jury box before questioning can begin. This parade can waste up to fifteen to twenty minutes of precious time. In a jury-centered approach to judging, this sends an initial, poor message to all potential jurors about the court’s lack of efficiency. In lieu of this, the Northern District of Iowa uses a computer program that randomly selects the order of all potential jurors. Thus, if we are seating twenty-nine potential jurors for a criminal case (twelve trial jurors, one alternate, with a total of sixteen preemptory strikes), the potential jurors are led into the courtroom from the jury assembly room in the random order generated by the software. They are then seated in that order in and around the jury box. This allows questioning of the potential jurors to begin immediately, without the parade of jurors—each being called individually by name. We also provide counsel with a printed schematic sheet that has the name of each potential juror in their row and seat. Then, if we lose a potential juror through questioning and have to replace that potential juror, we simply take a sticker off a second printed sheet with each jurors’ names in the order that they will be called and place it on the schematic. That way, the lawyers and I do not have to write down the name of each new potential juror. This is a real timesaver.
D. Efficient and Snappy Voir Dire Based on many discussions with my colleagues and trial lawyers across the country, I am in a distinct federal trial court judge minority—one that strongly believes that trial lawyers have a significant and important role to play in voir dire. I partner with the lawyers at the FPTC on how we should conduct voir dire. Sometimes, at the lawyers’ request, I do the entire voir dire. Sometimes they do almost the entire voir dire. Mostly, I usually start the voir dire and do the bulk of it, while the lawyers take about thirty minutes or so per side. However, it cannot be like some state courts that permit unlimited attorney voir dire which goes on for weeks with the startling practice of
58 having no judge present.52 One would have thought that this practice would have been determined cruel and usual infliction of pain years ago by the state—akin to current notions of torture in violation of the Eighth Amendment. Voir dire can certainly be shortened by several time-saving devices we use in our court. In the prior section I discussed the use of a computer list to randomly select the order of each potential juror prior to jury selection. It is unimaginable that some courts hale potential jurors into the courthouse to fill out a questionnaire at the courthouse! But, it gets worse. In one court where I was a visiting judge trying a complex civil case, they not only had the potential jurors fill out questionnaires the morning of trial, but then made them wait for hours while the lawyers “digested” the questionnaire answers. What a waste of the jurors’ precious time. I did not accede to this local practice and, instead, did it the Northern District of Iowa way. The questionnaires were sent out ahead of time, scanned by the clerk’s office, and e-mailed to the lawyers the week before jury selection. This allowed the trial lawyers to spend more time on the earlier, seated potential jurors’ questionnaires and helped to speed up jury selection.
E. Hard Time Limits on Opening Statements and Closing Arguments53 Twenty-five minutes or so into the vast majority of opening statements, most jurors have a glazed look in their eyes. Most lawyers are not very good storytellers.54 Additionally, most great stories are told in far less than twenty- five minutes.55 Lawyers who have worked on a case for several years feel compelled to tell the jurors everything they know about the case in opening statements. Unfortunately, without a great story, the jurors have no way of assimilating the information in the opening statement. Thus, most opening statements fall flat. In closing arguments, this problem is magnified because, by then, the jurors have heard and seen all the evidence. Hard time limits on
52. New York state courts are an example. “In most civil trials, voir dire generally is conducted by counsel outside the immediate presence of the assigned trial judge, though the judge retains discretion to remain present during any or all parts of the process.” ANN PFAU, IMPLEMENTING NEW YORK’S CIVIL VOIR DIRE LAW AND RULES 3 (2009), http://www.nycourts.gov/publications/pdfs/ImplementingVoirDire2009.pdf. 53. I have “borrowed” the phrase “hard limits” from nationally recognized trial lawyers Steve D. Susman and Thomas M. Melsheimer. See Susman & Melsheimer, supra note 17, at 441. 54. Bennett, Eight Traits, supra note 3, at 4 (“[T]here is one trait that always separates great trial lawyers from lesser ones: superb, masterful storytelling. I know of no exception. This does not mean that all great storytelling lawyers are great trial lawyers—but that all great trial lawyers are great storytellers.”). 55. Id. at 15 (explaining that the Gettysburg Address was only 256 words).
59 opening statements and closing arguments help lawyers stay on message while avoiding juror frustration, boredom, and disengagement. Remember, they did not volunteer for this civic duty.
F. Strong Judicial Oversight of the Final Pre-Trial Conference to Eliminate Redundant, Cumulative, and Excessive Witnesses and Exhibits Another common juror criticism of lawyers is: “We got it the first time.” Trial judges and trial lawyers have a duty to protect jurors from unnecessary, cumulative, and excessive evidence. Federal Rules of Evidence 102, 403, and 61156 provide judges with the tools to make sure this happens and the FPTC is a venue in which to accomplish this. Federal Rule of Civil Procedure 16, titled “Pretrial Conferences; Scheduling; Management,” is also replete with authority to streamline trials. This includes: “improving the quality of the trial through more thorough preparation;”57 “formulating and simplifying the issues, and eliminating frivolous claims or defenses;”58 “obtaining admissions and stipulations about facts and documents to avoid unnecessary proof, and ruling in advance on the admissibility of evidence;”59 “avoiding unnecessary proof and cumulative evidence;”60 “limiting the use of testimony under Federal Rule of Evidence 702” (expert witnesses);61 and “facilitating in other ways the just, speedy, and inexpensive disposition of the action.”62 For over two decades, I have required the parties to list all witness and exhibits, with detailed objections to either, in the proposed final pre-trial order. They are required to meet and confer prior to the FPTC to reduce objections and eliminate redundant, cumulative, and excessive witnesses and exhibits. The major emphasis of the FPTC is to use my authority as the trial
56. FED. R. EVID. 102 (“These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay.”); FED. R. EVID. 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”); FED. R. EVID. 611(a)(2) (The “court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to avoid wasting time.”). 57. FED. R. CIV. P. 16(a)(4). 58. FED. R. CIV. P. 16(c)(2)(A). 59. FED. R. CIV. P. 16(c)(2)(C). 60. FED. R. CIV. P. 16(c)(2)(D). 61. Id. 62. FED. R. CIV. P. 16(c)(2)(P).
60 judge to eliminate as many remaining objections as possible.63 When litigators assert numerous frivolous objections to exhibits, I have many tools at my disposal to bring such behavior to a screeching halt. For example, when there are frivolous foundation and hearsay objections to obvious business records, I indicate that if those objections fail at trial—which they will—I will impose substantial sanctions. If judges fail to use the FPTC to eliminate redundant, cumulative, and excessive exhibits, cruel and usual punishment is often inflicted on the jurors.
III. RIGHT NO. II: JURORS HAVE THE RIGHT IN JURY SELECTION IN EVERY CIVIL CASE TO BE TOLD EXACTLY HOW LONG THE TRIAL WILL LAST—MINUS DELIBERATIONS It is grossly unfair to jurors to tell them trial will last at least the seven to ten days the lawyers estimate and then have it last longer. Jurors have busy lives too. They need to be able to plan their lives and those of their families. There is only one way I know of to accomplish this goal with virtual certainty: hard time limits on the presentation of evidence. As super-star Texas trial lawyers Steve D. Susman and Thomas M. Melsheimer have written: Time limits are perhaps the most easily adopted, and most common form, of jury trial improvement, though the parties may not often see the practice in that light. . . . Time limits do more than just conserve judicial resources; they make for better trials—especially better jury trials. In our experience, when the parties are forced to decide how to fit their evidence into a strictly enforced maximum number of hours, the presentation invariably improves. By making hard decisions about which witnesses to call and what lines of inquiry to pursue in front of the jury, the trial lawyer streamlines the case in a way that will better hold the jury’s interest and focus the jury’s attention, itself a scare resource, on the important issues rather than on collateral ones.64 Not only will lawyers try a better case, with a shorter trial improving the jurors’ ability to assimilate evidence and reach a more just verdict, hard time limits show the courts’ and lawyers’ respect for jurors by not wasting their time. “Courts have an ethical obligation to provide citizens with complete
63. Schuler, supra note 13, at 469 (“Judge Bennett prefers to duke out the admissibility of exhibits before trial. The judge has found that doing otherwise, i.e., waiting to admit exhibits when they are presented, only prolongs the trial and wastes the jury’s time.”). 64. Susman & Melsheimer, supra note 17, at 441–42.
61 and accurate information about the practical demands of jury service including the amount of time that citizens can reasonably expect to dedicate to it . . . .”65 Hard time limits on the presentation of evidence in jury trials is not a new idea, rather, it is a growing phenomenon.66 In an article written more than thirty years ago, Professor John Rumel summarized the few existing cases where trial court judges had imposed various types of time limits.67 In a criminal tax fraud case, Judge Bertelsman not only imposed time limits that both sides objected to (sixteen-day trial limit on all parties),68 but provided a classic rationale for doing so: It would seem that early in the career of every trial lawyer, he or she has lost a case by leaving something out, and thereupon resolved never again to omit even the most inconsequential item of possible evidence from any future trial. Thereafter, in an excess of caution the attorney tends to overtry his case by presenting vast quantities of cumulative or marginally relevant evidence. In civil cases, economics place some natural limits on such zeal. The fact that the attorney’s fee may not be commensurate with the time required to present the case thrice over imposes some restraint. In a criminal case, however, the prosecution, at least in the federal system, seems not to be subject to such fiscal constraints, and the attorney’s enthusiasm for tautology is virtually unchecked.69 Judge Bertelsman saw time limits as a reasonable means to control “burgeoning litigation” and to force “counsel to conform their zeal to the need
65. Paula L. Hannaford-Agor & G. Thomas Munsterman, Ethical Reciprocity: the Obligations of Citizens and Courts to Promote Participation in Jury Service, in JURY ETHICS: JUROR CONDUCT AND JURY DYNAMICS 30 (John Kleinig & James P. Levine eds., 2006). 66. Andrew L. Goldman & J. Walter Sinclair, Advisability and Practical Considerations of Court-Imposed Time Limits on Trial, 79 DEF. COUNS. J. 387, 387 (2012) (“[I]t is becoming more common for courts to impose time limits during trial.”). This article also lists nine benefits of time-limited trials, some solely from the defense perspective: “Time limits force the defense to focus on what’s important. . . . Time limits ensure the defense has a fair opportunity to put on its defense without being accused of wasting time. . . . Shorter trials help to maintain the jury’s attention. . . . Time limits reduce the likelihood of jurors being excused for hardship during voir dire or during trial. . . . Time limits may hamper the plaintiffs’ ability to meet its burden of proof and/or cross-examine defense witnesses. . . . Time limits restrict the number of video depositions played at trial. . . . Time limits reduce cumulative testimony by experts. . . . Time limits motivate judges to control evasive adverse witnesses. . . . Time limits provide clients with some logistical and budget certainty.” Id. at 392–96. 67. John E. Rumel, The Hourglass and Due Process: The Propriety of Time Limits on Civil Trials, 26 U.S.F. L. REV. 237, 245 (1992). 68. Id. 69. Id.; see also United States v. Reaves, 636 F. Supp. 1575, 1576 (E.D. Ky. 1986).
62 of the court to conserve its time and resources.”70 Judge Bertelsman also endorsed a statement from an article that: “All jury trials should have time limits substantially less than the time now required.”71 Judge Bertelsman further elaborated that litigators have a “tendency to want to present the evidence not once, but many times over, and to adduce needlessly cumulative evidence not only on the controverted issues but also on those which are all but uncontested.”72 Interestingly, Judge Bertelsman, while deeply concerned about his own time, the control of his docket, and the public interest in more efficient trials, did not directly address the infliction of pain longer trials impose on the invited guests—the jurors. In recognition of the growing use of hard time limits in civil cases, the Federal Rules of Civil Procedure were amended in 1993 to explicitly give trial court judges the power to impose, at any pre-trial conference, an order “establishing a reasonable limit on the time allowed to present evidence.”73 The Advisory Committee Notes to this amendment indicate: It supplements the power of the court to limit the extent of evidence under Rules 403 and 611(a) of the Federal Rules of Evidence, which typically would be invoked as a result of developments during trial. Limits on the length of trial established at a conference in advance of trial can provide the parties with a better opportunity to determine priorities and exercise selectivity in presenting evidence than when limits are imposed during trial. Any such limits must be reasonable under the circumstances, and ordinarily the court should impose them only after receiving appropriate submissions from the parties outlining the nature of the testimony expected to be presented through various witnesses, and the expected duration of direct and cross-examination.74 In my experience, most judges impose hard time limits because of docket pressure.75 I impose them because I hate to see jurors suffer—inflicted with
70. Reaves, 636 F. Supp. at 1580. 71. Id. (citing Roger W. Kirst, Finding a Role for the Civil Jury in Modern Litigation, 64 JUDICATURE 333, 337 (1986)). 72. Id. at 1579. 73. FED. R. CIV. P. 16(c)(2)(O). 74. FED. R. CIV. P. 16(c)(2)(O) advisory committee’s note (1993). 75. Borges v. Our Lady of the Sea Corp., 935 F.2d 436, 442 (1st Cir. 1991) (“District courts may impose reasonable time limits on the presentation of evidence.”); Johnson v. Ashby, 808 F.2d 676, 678 (8th Cir. 1987) (“We agree with the Seventh Circuit that, ‘in this era of crowded district court dockets federal district judges not only may but must exercise strict control over the length of trials, and are therefore entirely within their rights in setting reasonable deadlines in advance and holding the parties to them.’”); Flaminio v. Honda Motor Co., 733 F.2d 463, 473
63 all too often cruel but usual punishment because of cumulative, unnecessary, and excessive evidence.76 The Arizona Jury Project recognized the importance of hard time limits on the presentation of evidence. The first recommendation under the Trial section was: Set and Enforce Time Limits for Trials.77 The explanation was: “Given the benefits to the parties, jurors and the court system of trials that are as short as fairness permits, judges ought to be given express authority, by rule, to impose reasonable time limits on trials or portions of trials.”78 The Seventh Circuit Project looked at hard time limits for evidence presentation. The use of hard time limits was premised on the ABA American Jury Project’s Principles and Standards which provides: “Principle 12 . . . courts should limit the length of jury trials insofar as justice allows and jurors should be fully informed of the trial schedule established.”79 To further ABA Principle 12, the ABA adopted Standard 12(a) which states: “The court, after conferring with the parties, should impose and enforce reasonable time limits on the trial or portions thereof.”80 While the Seventh Circuit Project covered fifty jury trials in Phases One and Two, only seven trials in Phase One used time limits.81 The time limits were only studied in Phase One and in only seven of the fifty jury trials
(7th Cir. 1984) (disapproving of “rigid” time limits, but affirming the time limits below and recognizing “in this era of crowded district court dockets federal district judges not only may but must exercise strict control over the length of trials, and are therefore entirely within their rights in setting reasonable deadlines in advance and holding the parties to them . . . .”); Lareau v. Page, 840 F. Supp. 920, 933 (D. Mass. 1993) (Judge William Young, after citing the “era of crowded district court docket” language of Flaminio, went on to observe: “Establishing time limits for the trial of cases is, in fact, an integral part of the Cost and Delay Reduction Plan adopted for the District of Massachusetts on November 18, 1991. . . . The value of pre-set time limits tailored to the trial of particular cases is becoming increasingly apparent.”). 76. I have yet to impose hard time limits in criminal cases. However, in a recent criminal jury trial I was so concerned about the lack of efficient and comprehensible presentation by the prosecution of their case in-chief, I stopped the trial to ask the jurors to do something I have never done before. I asked each juror to take a piece of paper from their notepads and answer two questions and then pass their answers down to the court security officer. I asked the court security officer to shuffle the papers so we would not know which juror answered the questions. The two questions were: 1) Do you find the way the evidence is being presented confusing? 2) How many find that the way the evidence is being presented is very boring? I then read aloud the results that the vast majority of the jurors answered “yes” to both questions. United States v. Orellana, CR14- 4046-MWB, (N.D. Iowa May 21, 2015). 77. THE POWER OF 12, supra note 12, at 22. 78. Id. 79. AM. JURY PROJECT COMM’N, supra note 26, at 45. 80. Id. 81. Id. at 9, 14.
64 studied in both phases.82 The Final Report noted that the sample size of the seven trials was too small to “draw any meaningful conclusions.”83 However, the Final Report surmises that the “limited evidence” indicates that the trial judges in the study were reluctant to use time limits because they would not increase the efficiency, fairness, or satisfaction with the trial process.84 That may explain why so few judges in the study chose to use time limits—but runs contrary to the limited evidence available from the actual seven trials that used time limits.85 That evidence establishes that only 2% of the judges, 4% of the lawyers, and 1% of the jurors in the seven trials with time limits thought the trials were too short.86 Yet, 11% of the judges, 9% of the lawyers, and a whopping 24% of the jurors still thought the trials were too long.87 Eighty-three percent of the attorneys participating in the time limit trials did not believe the time limits affected the “fairness of the trial process”—but only 25% of the lawyers in the trials without time limits thought time limits would not affect the “fairness of the trial process.”88 Even with the time limits, the jurors found the trials substantially less efficient than the judges and lawyers involved.89 The jurors also found even in the time limit trials that more repetitive and redundant evidence existed than either the judges or lawyers thought.90 Finally, the jurors gave a very high rating to how important it was to be told by the trial judge how long the trial would last based on the time limits.91 More and most telling is the substantial difference in responses between the minority of judges that did use time limits (20%) and the majority that did not (80%).92 Only 14% of the judges who used time limits thought they decreased the fairness of the trial (the same percentage that thought it increased the fairness) while 27% of the judges who did not use time limits thought fairness would decrease.93 More compelling is that 67% of the judges
82. Id. at 9, 14. 83. Id. at 14. 84. Id. 85. Id. at 57–59. 86. Id. at 57. 87. Id. 88. Id. at 58. 89. Id. at 57–58 (jurors in Phase One of the study rated the efficiency of the trial as a 4.8 on a “1” to “7” scale, with “1” meaning “Not at all efficient” and “7” meaning “Very efficient”; judges and attorneys rated the trial’s efficiency as 5.2 and 5.8, respectively.). 90. Id. at 57. 91. Id. at 58 (on a scale of “1” to “7” where “7” was “Extremely important,” jurors gave the importance of knowing how long the trial would last or knowing when it would end a 5.3 rating). 92. Id. 93. Id.
65 who actually used time limits thought it increased the efficiency of the trial while only 8% who did not use time limits thought time limits would increase efficiency.94 Not a single judge who used the time limits thought the efficiency of the trial was decreased, yet 20% of the judges who did not use time limits thought time limits would decrease efficiency if used.95 How using time limits could not increase the efficiency of a jury trial is beyond me. This data confirms what I have always thought. Judges who use time limits find benefits in them and judges who do not are much more skeptical of time limits—which explains why they do not use them. I, too, was skeptical until I tried them. Now, I would never conduct a civil jury trial (other than an extremely short one) without them. The failure of the Seventh Circuit Project to recommend the use of time limits, or at least to have studied them further in Phase Two, or in a further study, reflects a serious absence of a jury-centered approach to judging. Jurors want hard time limits because it enhances their ability to fairly decide cases and informs them of how long their service is likely to last. In every case where I have imposed hard time limits, the lawyers agreed after the trial was completed that the limits helped them try a more persuasive and better case by forcing them to focus on the most important evidence and cross-examination points. Indeed, lawyers rarely use all of the time provided to their side; in fact, in trials where I have imposed hard time limits, I have never seen a lawyer use all of her time.96 I use the procedure outlined in the advisory committee’s note to Federal Rule of Civil Procedure 16 (c)(2)(O). I discuss with the lawyers before the FPTC that I will be imposing hard time limits on their presentation of evidence and encourage them to reach agreement on how much time is needed for the presentation of evidence and how the time should be divided. I then make the final decision at the end of the FPTC, after I have fully explored the parties’ witness and exhibit lists with them and have listened to their judgments about the time needed. There is usually quick agreement. In one recent civil trial, the parties were reluctant to agree to the use of time limits in any fashion. I then emailed them “Trial By Agreement: How Trial Lawyers Hold the Key to Improving Jury Trials in Civil Cases,” and required them to read the article (this was before I added this to my trial management order) and report back to me. In response, they agreed to the time limits I had suggested. Somewhat surprisingly, they also agreed that the plaintiff could have seventy percent of the time and the
94. Id. 95. Id. 96. Susman & Melsheimer, supra note 17, at 445 (“[I]t is our experience that the parties almost always fail to use every minute allotted to them.”).
66 individual and municipal defendants combined needed only thirty percent. I was very pleasantly surprised. While we have a chess clock at my law clerk’s desk in the courtroom, we have gravitated to using an online chess clock to measure the time limits. The time for each side includes their direct and cross-examination. The time for stretch breaks runs on the time of the party doing the examination when the stretch break occurs. The other “real” mid-morning and mid-afternoon breaks do not count against the parties, but I add that into the schedule so I can tell the jurors in jury selection exactly how long the trial will last. Because I do not hold sidebars and require the lawyers to meet with me either before the jury is brought in each morning or after they are sent home at the end of the day to address and resolve potential problems, my calculations on the length of trial are remarkably accurate. At bottom, shorter trials are better and fairer trials.97
IV. RIGHT NO. III: JURORS HAVE THE RIGHT IN EVERY TRIAL TO THEIR OWN SET OF PLAIN ENGLISH “FINAL” JURY INSTRUCTIONS PRIOR TO OPENING STATEMENTS Most jury trial innovators argue for preliminary instructions before opening statements.98 That is because most judges wait to instruct the jury until after the attorneys’ closing arguments.99 Some judges give each juror a written copy of the instructions, others give the jury just one copy, and yet
97. Id. at 442–44 (noting that shorter trials increase wider juror participation due to fewer jurors being excused; jurors are able to assimilate complex matters in a short period of time; and shorter trials save clients considerable costs). 98. AM. JURY PROJECT COMM’N, supra note 26, at 13 (“The Seventh Circuit Project jury trials in which this concept [preliminary instructions] from the ABA Principles was tested resulted in over eighty percent (80%) of the jurors, over eighty-five percent (85%) of the judges and over seventy percent (70%) of the lawyers who participated stating they believed that this intended goal of enhancing juror understanding was accomplished. The Commission therefore strongly recommends use of this procedure in future state and federal civil jury trials.”); THE POWER OF 12, supra note 12, at 80 (“The committee strongly endorses the use of preliminary instructions in both civil and criminal cases.”); Nancy S. Marder, Bringing Jury Instructions into the Twenty- First Century, 81 NOTRE DAME L. REV. 449, 498 (2006) (“Even if judges still give the bulk of the instructions at the end of the trial, they can give some of the instructions earlier in the proceeding. It would be useful for judges to give jurors ‘preliminary jury instructions’ in which they tell jurors about their role, the case, and the law so that jurors have some framework in which to place the trial that is about to unfold. These preliminary instructions should be given orally and in writing, and jurors should be told that the instructions are subject to change depending on developments at trial.”). 99. Marder, supra note 99, at 491.
67 others give no written copy at all.100 My practice for years has gone much, much farther. In every type of criminal and civil case, I give each juror their own written set of plain English final instructions before opening statements. The instructions come complete with a meaningful table of contents, bullet points, and white space. All instructions are self-contained. By self- contained, I mean all the elements of each claim or defense are contained within the instruction itself. Equally important is the verdict form in chart format which can be shown to the jurors in voir dire to ensure that they are capable of deciding the precise issues presented in each unique jury trial. The verdict form is a single snapshot of the entire case. I served on our circuit’s Model Jury Instruction Committee for a decade.101 It was, and is, a superb Committee made up of federal district judges, magistrate judges, assistant U.S. Attorneys, assistant federal public defenders, and lawyers from private practice. They do a fabulous job of drafting legally accurate model instructions for both civil and criminal cases. I resigned from the Committee a few years ago because I was frustrated with the Committee’s pace in moving towards plain English instructions. After all, the Arizona Jury Project recommended plain English jury instructions back in 1994.102 Equally frustrating was the Committee’s unwillingness to embrace my longstanding approach to a more juror-friendly format with bullet points and lots of white space. This was in lieu of traditional lengthy paragraphs full of terms average jurors never use and likely do not understand. Jury instructions have not kept up with the way in which most people now receive their information. Can you imagine a PowerPoint presentation using a series of lengthy text-only paragraphs or a web page chock full of nothing but text?103 I have been using my own plain English instructions based on bullet
100. E.g., Scott Donaldson, Improving Jury Service, 73 ALA. LAW. 190, 192–93 (2012) (Judge Donaldson notes that Alabama generally does not permit even a single copy of written instructions to go back to the jury nor are preliminary instructions generally allowed). 101. Mark W. Bennett, Unspringing the Witness Memory and Demeanor Trap: What Every Judge and Juror Needs to Know About Cognitive Psychology and Witness Credibility, 64 AM. U. L. REV. 1331, 1348 (2015) (“Pattern instructions have achieved popularity across the country as a modern guide for various reasons; they decrease the time lawyers spend on crafting jury instructions, and they increase the predictability of how the judge will instruct, assuming the judge uses available pattern instructions. At least in theory, pattern instructions decrease the frequency of appeals and reversals.”). 102. THE POWER OF 12, supra note 12, at 99 (“Use Only Plain English in Trials, Especially in Legal Instructions.”). 103. Professor Marder notes that the “cumbersome way in which [jury] instructions are now presented hardly meets these young jurors’ expectations.” Marder, supra note 99, at 510.
68 points and white space for many years—completely eschewing the very Model Instructions I helped develop as a member of the Committee.104 Professor Nancy Marder has described the problems of jury instructions as a “conundrum.”105 They are a conundrum because they are the only way the judge communicates the law to jurors “yet jury instructions are written and presented in a manner that defy comprehension to those untrained in the law.”106 Marder notes that some thirty years of empirical research confirms that jury instructions are drafted in language that lawyers understand but jurors do not.107 Despite all of the empirical research, “jury instructions have remained fairly impervious to change.”108 This was precisely my frustration while serving on our circuit’s Model Jury Instruction Committee. Historically, there has been a far greater preoccupation on instructions being a correct statement of the law even while remaining incomprehensible to most jurors.109 This is largely the result of model jury instruction committees being composed of judges and lawyers.110 Thus, there is a widespread consensus in the legal community that current jury instructions all too often “fail to achieve clarity.”111 This remains true in spite of the decades old 2005 recommendation by the American Bar Association’s Principles for Juries and Jury Trials that: “All instructions to the jury should be in plain and understandable language.”112
104. Holderman & Walls, supra note 16, at 343, 347. (discussing the effect of technology and the internet on the ways that Generation X, Y, and Z learn, and noting that most current U.S. district court judges are members of the earlier “Baby Boomer” generation). 105. Marder, supra note 99, at 451. 106. Id. 107. Id. 108. Id. at 452. 109. See, e.g., Robert G. Nieland, Assessing the Impact of Pattern Jury Instructions, 62 JUDICATURE 185, 188 (1978) (“The one thing an instruction must do above all else is correctly state the law . . . . This is true regardless of who is capable of understanding it.”) (citing JUDGES OF THE SUPERIOR COURT OF L.A. CTY., CAL., BOOK OF APPROVED JURY INSTRUCTIONS (Wolfer, 1938)). 110. Amiram Elwork et al., Juridic Decisions: In Ignorance of the Law or in Light of It?, 1 LAW & HUM. BEHAV. 163, 164 (1977) (“Although [pattern instructions] have been prepared to be legally accurate, little attention has been given to making them understandable to the average juror. Most drafting committees are composed solely of judges and lawyers, and few committees have been willing to hire language experts.”). 111. Shari Seidman Diamond et al., The “Kettleful of Law” in Real Jury Deliberations: Successes, Failures, and Next Steps, 106 NW. U. L. REV. 1537, 1545 (2012). For an excellent and concise discussion of the history of jury instructions in the United States and an overview of empirical studies on juror comprehension of instructions see id. at 1540–46. 112. AM. JURY PROJECT, A.B.A., PRINCIPLES FOR JURIES AND JURY TRIALS 1, 20–21 (2005) (Principle 14-A.).
69 I have frequently been asked at CLE and judge training programs—how can one possibly give final instructions before opening statements? Skeptics align along two distinct avenues. The first, and most frequent objection is: “don’t you have to withdraw and add instructions frequently?” The simple answer is no. Because my FPTC is so rigorous, this situation seldom arises— maybe once in every fifty trials. If a claim is not being submitted, I simply ask the jurors to turn to page eight, titled, for example, “Breach of Contract Claim,” explain that the claim is no longer in the case for them to decide, and instruct that everyone take their pens and draw a big X through it—doing the same to the corresponding part of the verdict form. I then add that they are not to speculate as to the reason this claim is no longer a part of the case. Adding a supplemental instruction is even easier. I simply pass it out to each juror before closing arguments and read it. I have never had a party object to this process. The second group of naysayers claim it is too much work. It is really the same amount of work; it is just done earlier in the trial process. The scheme of honing the jury instructions and locking them down before trial is done by email with the lawyers. The emails are then filed and made a part of the docket. After reviewing the parties’ proposed jury instructions, I make modifications and email my proposed set with detailed annotations on why I am instructing the way I am. The lawyers and I often go through three quick rounds of emails as we narrow the differences. When I am satisfied our work is done, I send them my final set. Any remaining objections are filed. The final set of jury instructions is ready to go a week before trial. While there are times when cases settle on the eve of trial and the instructions are not used, they are inevitably used in a future trial. I rarely consider the work wasted. More importantly, I have never kept a juror waiting while working on instructions. A jury-centered approach to judging would not let that happen. Yet, in many trials, the jurors are sent home for a day or have to wait for many hours while the instructions are being hammered out.113 What a waste of jurors’ precious time. In a recent study, updating the National Center for State Courts 2007 State- of-the-States Survey of Jury Improvement Effort, the use of preliminary instructions on legal elements increased in federal courts in civil cases from
113. This was the conclusion of the Arizona Jury Project, which included recommendation 39: Do not Keep Jurors Waiting While Instructions are Settled. THE POWER OF 12, supra note 12, at 102 (“Frequently, juries are kept waiting for long periods of time while instructions are being settled by the judge and attorneys.”).
70 seventeen percent in 2005 to twenty-five percent in 2014.114 In state courts the increase was only from eighteen to nineteen percent.115 Thus, there is enormous room for improvement.
V. RIGHT NO. IV: JURORS HAVE THE RIGHT TO HAVE THEIR TRIAL JUDGE THOUGHTFULLY CONSIDER INNOVATIONS THAT ENHANCE THEIR EXPERIENCE AND IMPROVE THE FAIRNESS OF THE TRIAL
A. Juror-Friendly Daily Trial Schedule116 In 1994, after polling two juries in lengthy trials—using the traditional 9:00 a.m. to 5:00 p.m. schedule for two weeks and my modified 8:30 a.m. to 2:30 p.m. with two twenty-minute breaks and no lunch break schedule for two weeks—I found jurors unanimously preferred the modified schedule.117 This schedule allows most jurors to make it home in time for the evening meal, accommodates more jurors who are self-employed, gives the lawyers time to prepare for the next day without losing a lot of sleep and to catch up with other clients and cases, allows me to schedule a variety of hearings in the afternoon and keep my docket rolling, and is a win-win for everybody but my court reporter.118 This schedule generates nearly as many real-time pages of transcripts as the more conventional trial schedule and, thus, is more efficient.119 Also, my experience as a trial judge has taught me that, like down-hill skiing, the most dangerous part of the trial day is late-afternoon. Late afternoon is when most skiing injuries occur and when lawyers, jurors, and trial judges are getting tired, more likely to be a little cranky, and bickering between counsel and witnesses increases—as does juror boredom.
B. Visual Voir Dire Jurors, like the rest of us, learn through a variety of senses. Many years ago, I decided that a visual PowerPoint voir dire was better for jury selection
114. Paula Hannaford-Agor, But Have We Made Any Progress? An Update on the Status of Jury Improvement Efforts in State and Federal Courts 6 (April 27, 2015) (unpublished manuscript) (on file with the author). 115. Id. 116. For a more thorough discussion of the advantages of the modified trial schedule see Schuler, supra note 13, at 474–77. 117. Id. at 475. 118. Id. at 475–76. 119. Id. at 476.
71 than the traditional oral approach. At first, I simply displayed my written questions in a series of PowerPoint slides. I found that jurors became more responsive to my questions and would often preface a response by starting: “As I am looking at the question I thought of . . . .” Somewhat coinciding with my move towards plain English jury instructions with plenty of white space and bullet points, I gravitated away from full questions to more bullet points in the PowerPoint slides. They now include photographs, a cartoon, videos, a colorful reasonable doubt chart in criminal cases, and some sound effects. Because we are a small court, there is an early slide with a picture of each of the judges in the district and I tell the prospective jurors a short story about each judge.120 The cartoon is about preemptory challenges and shows a pair of large arms grabbing two jurors out of the jury box. I discuss the jury selection process with the prospective jurors and explain it is really a process of deselection. I introduce a little humor as I tease the potential jurors and ask them where they think the large mechanical arms removing them from the jury box come out of in our historic, but state-of-the-art high tech courtroom.121
C. Juror Note-Taking The only shocking news about this early and most frequently used jury trial innovation is that there are actually judges that do not allow jurors to take notes.122 Both judges and jurors in actual field studies in Massachusetts, Ohio, and Tennessee report strong support for note-taking with as high as ninety-six percent of jurors in the Massachusetts study reporting “that note taking was somewhat to very helpful.”123 Several other significant benefits of juror note-taking have been observed in mock trial studies. Juror note-taking improved understanding and memory of evidence; increased efficiency of deliberations; increased rejection of information that was not in evidence; and
120. For example, when the photograph of our ninety-five-year-old senior judge in Cedar Rapids is displayed, I explain that Judge McManus was appointed by President John F. Kennedy on July 17, 1962, when I was just twelve years old and that he could have retired with full pay thirty years ago. 121. I realize not every trial judge has access to a high-tech courtroom. Those that do not might be more aggressive in asking local bar associations or community service clubs and organizations to fund the technology. 122. Hannaford-Agor, supra, note 115, at 7 (indicating that in 2005 seventy-one percent of the courts allowed note taking and in 2014 seventy-six percent did). 123. PAULA L. HANNAFORD & G. THOMAS MUNSTERMAN, FINAL REPORT FOR THE MASSACHUSETTS PROJECT ON INNOVATIVE JURY TRIAL PRACTICES 5 (2001).
72 note-taking jurors rated themselves more attentive.124 I have allowed jurors to take notes in every trial I have ever conducted and simply cannot fathom a rationale for not allowing it. A juror in one of my prior trials commented in her post verdict evaluation, “[w]ithout notes I don’t know how anyone can come up with a good decision by just memory.”125 I instruct the jurors on the various do’s and don’ts of note-taking.126 I also suggest taking notes right on the set of jury instructions each juror has or on the notepad and pen we give them.
D. Juror Questioning of Witnesses President Abraham Lincoln was a trial lawyer before becoming President.127 In an alleged homicide case, in September of 1859, Lincoln was defending Peachy Quinn Harrison. A juror asked a question without objection from Lincoln, the prosecutor, or the judge.128 I was a late comer to this innovation. For years, I thought juror questioning of witnesses was a bad idea because it would transform an adversarial system into an inquisitorial one. In 2011, I attended my first ABOTA Jury Summit Conference and listened to several Texas state court judges discuss very favorably their experiences with jurors asking witnesses questions. I decided to try it. Cautious at first, I waited for all counsel to agree. After the first trial I allowed juror questioning of witnesses at, I was convinced it was a superb innovation and have required it
124. B. Michael Dann & Valerie P. Hans, Recent Evaluative Research on Jury Trial Innovations, 41 CT. REV. 12, 13 (2004). 125. Schuler, supra note 13, at 482 n.121. 126. My instructions for note-taking: You are allowed to take notes during the trial if you want to. •Be sure that your note-taking does not interfere with listening to and considering all the evidence •Your notes are not necessarily more reliable than your memory or another juror’s notes or memory •Do not discuss your notes with anyone before you begin your deliberations •Leave your notes on your chair during recesses and at the end of the day •At the end of trial, you may take your notes with you or leave them to be destroyed •No one else will ever be allowed to read your notes, unless you let them •If you choose not to take notes, remember that it is your own individual responsibility to listen carefully to the evidence •An official court reporter is making a record of the trial, but her transcripts will not be available for your use during your deliberations. 127. Stephen R. Kaufmann & Michael P. Murphy, Juror Questions During Trial: An Idea Whose Time Has Come Again, 99 ILL. B.J. 294, 295 (2011). 128. Id.
73 in all civil jury trials.129 In a small but increasing number of states, jury questions of witnesses is not only encouraged but required by state law.130 In the Arizona Project, 829 questions submitted by jurors in fifty civil jury trials in Arizona were thoroughly analyzed.131 The comprehensive results found: [T]hat juror questions generally do not add significant time to trials and tend to focus on the primary legal issues in the cases. Jurors not only use questions to clarify the testimony of witnesses and to fill in gaps, but also to assist in evaluating the credibility of witnesses and the plausibility of accounts offered during trial through a process of cross-checking. Talk about answers to juror questions does not dominate deliberations. Rather, the answers to juror questions appear to supplement and deepen juror understanding of the evidence. In particular, the questions jurors submit for experts reveal efforts to grapple with the content, not merely the trappings,
129. I do not allow jurors to ask questions in criminal cases based on the problems that could arise with the presumption of innocence and shifting the burden of proof. At least five states prohibit the practice of jury questions in criminal trials: Georgia, Minnesota, Mississippi, Nebraska, and Texas. See Johnson v. State, 507 S.E.2d 737, 742 (Ga. 1998) (“Clearly, a juror is not permitted to question a witness.”); State v. Costello, 646 N.W.2d 204, 214 (Minn. 2002); Wharton v. State, 734 So.2d 985, 990 (Miss. 1998) (holding that “juror interrogation is no longer to be left to the discretion of the trial court, but rather is a practice that is condemned and outright forbidden by this Court”); State v. Zima, 468 N.W.2d 377, 379–80 (Neb. 1991) (citations omitted) (“Since due process requires a fair trial before a fair and impartial jury, the judicial process is better served by the time-honored practice of counsel eliciting evidence which is heard, evaluated, and acted upon by jurors who have no investment in obtaining answers to questions they have posed.”); Morrison v. State, 845 S.W.2d 882, 886–89 (Tx. Crim. App. 1992) (holding that jurors are not permitted to ask witnesses questions: “A change in our system involving intrusion of one component into the function of another may only be established through the limited rule-making authority of this court, subject to the disapproval by the legislature or by the legislature in accordance with due process.”); see also John R. Stegner, Why I Let Jurors Ask Questions in Criminal Trials, 40 IDAHO L. REV. 541 (2004). But see N. Randy Smith, Why I Do Not Let Jurors Ask Questions in Trials, 40 IDAHO L. REV. 553 (2004). 130. Nancy S. Marder, Answering Jurors’ Questions: Next Steps in Illinois, 41 LOY. U. CHI. L.J. 727, 747 (2010) (citing Gregory E. Mize & Paula Hannaford-Agor, Jury Trial Innovations Across America: How We Are Teaching and Learning from Each Other, 1 J. CT. INNOVATION 189, 214 (2008)); Nicole L. Mott, The Current Debate on Juror Questions: ‘To Ask or Not to Ask, That Is the Question’, 78 CHI.-KENT L. REV. 1099, 1100 (2003) (stating that Arizona, Florida, and Indiana ‘explicitly allow jurors to submit written questions to witnesses’ and that a Colorado Superior Court Committee had ‘recommended that jury questions be permitted in both civil and criminal cases.’”); Susman & Melsheimer, supra note 17 at 448. 131. Shari Seidman Diamond et al., Juror Questions During Trial: A Window into Juror Thinking, 59 VAND. L. REV. 1927, 1939 (2006).
74 of challenging evidence. Moreover, jurors rarely appear to express an advocacy position through their questions.132 The Seventh Circuit Project looked at juror questions for witnesses during trial.133 The Seventh Circuit Project’s examination of juror questions of witnesses was premised on the ABA American Jury Project’s Principle 13(C) which provides in part: “In civil cases, jurors should, ordinarily, be permitted to submit written questions for witnesses.”134 Judges in the Seventh Circuit Project permitted juror questions of witnesses in thirty-eight jury trials.135 Jurors submitted questions in only thirty-one of the thirty-eight trials (83%).136 Jurors submitted an average of eighteen questions per trial averaging six questions per day.137 Fifty-six percent of the jurors indicated they submitted at least one question per trial.138 The demographics of jurors asking questions is very interesting. The likelihood of a question by a juror did not depend on juror age, gender, race, or ethnicity.139 Jurors with a graduate education were more likely to ask questions, but fifty percent of the jurors at every educational level asked a question.140 Ironically, the only other factor associated with the likelihood of asking a question was prior jury service—first time jurors were more likely to ask questions than jurors with prior jury service.141 Seventy-four percent of the judges, forty-seven percent of the lawyers, and sixty-seven percent of the jurors thought juror questions increased the fairness of the trial.142 None of the judges, only seven percent of the lawyers, only five percent of the losing lawyers, and one percent of the jurors believed the juror questioning decreased the fairness of the trial.143
132. Id. at 1931. 133. AM. JURY PROJECT COMM’N, supra note 26, at 15–24, 60–62. 134. Id. at 15. The remaining portion of the ABA American Jury Project’s Principle 13(C) describes the recommended procedure for juror questions of witnesses. Id. This includes instructing the jury at the beginning of the trial about the procedure for their questions; the judge should make the questions part of the record; the lawyers should be given an opportunity outside the presence of the jury to object or suggest modifications to the question; the judge or lawyers should ask the question depending on what the lawyers prefer; and the lawyers should be given an opportunity to ask follow up questions after the juror question is asked. Id. 135. Id. at 19. 136. Id. 137. Id. 138. Id. 139. Id. at 21. 140. Id. 141. Id. 142. Id. at 22–23. 143. Id.
75 Seventy-seven percent of the judges, sixty-five percent of the lawyers, fifty-eight percent of the losing lawyers, and eighty-three percent of the jurors thought juror questioning increased or helped juror understanding.144 The primary purposes for jurors asking questions in descending order were: to get additional information; clarify information already presented; to check on a fact or information; and to cover something the lawyers missed.145 In an earlier national field experiment in which 160 cases spanning thirty- three states were randomly assigned to permit or not permit juror questions, jurors allowed to ask questions of witnesses rated themselves as better informed than those who were not allowed to ask questions.146 One study in New Jersey estimated that juror questioning of witnesses during trial added only thirty extra minutes to the trial.147 In my experience, it is less than that. Numerous studies now widely support juror questions in civil cases. Studies in Los Angeles County, Massachusetts, Ohio, New Jersey, and Tennessee found that jurors, judges, and lawyers who participated in trials where jurors were allowed to question witnesses strongly supported this innovation.148 Juror questioning of witnesses in civil cases has risen nationally from sixteen percent in 2005 to twenty-five percent in 2015.149 State trial courts (twenty-eight percent) are significantly more likely to allow juror questioning of witnesses than federal courts (eighteen percent).150 My co-authors and I recently published an empirical study of Iowa trial judges and federal trial judges in the Eighth Circuit, as well as several hundred Iowa trial lawyers on jurors asking questions of witnesses.151 We concluded that judges and lawyers who used the practice overwhelmingly supported jurors asking questions of lawyers.152 However, those that do not have experience were fearful of a parade of horribles that never materialize
144. Id. 145. Id. at 24. 146. Larry Heuer & Steven Penrod, Juror Notetaking and Question Asking During Trials: A National Field Experiment, 18 LAW & HUM. BEHAV. 121, 122, 142–43 (1994). 147. Diamond et al., supra note 132, at 1932–33. 148. Dann & Hans, supra note 125, at 14 (citation omitted) (“In an extensive study involving juror questions in 239 criminal trials in Colorado, researchers . . . . concluded: ‘Overall, the results reveal that juror questioning has little negative impact on trial proceedings and may, in fact, improve courtroom dynamics.’”). 149. Paula Hannaford-Agar, supra note 115, at 7. 150. Id. 151. Thomas D. Warerman, Mark W. Bennett & David C. Waterman, A Fresh Look at Jurors Questioning Witness: A Review of Eight Circuit and Iowa Appellate Precedents and an Empirical Analysis of Federal and State Trial Judges and Trial Lawyers, 64 DRAKE L. REV. 485 (2016). 152. Id. at 515, 518.
76 when the practice is actually used.153 The study proved the wisdom of a Mark Twain quote: “It ain’t what you don’t know that gets you in trouble. It’s what you know for sure that just ain’t so.”154 The following graph displays the responses on how allowing jurors to ask questions affects various aspects of a jury trial based on judges with and without experience using the practice.155 How Would Allowing Jurors to Submit Questions for Witnesses Increase the Following?
90% 82% 80% 70% 57% 60% 53% 49% 50% 50% 43% 40% 30% 32% 30% 25% 20% 7% 7% 10% 5% 0% Fairness of Jurors' Your Efficiency of Efficiency of Accuracy of trial understanding satisfaction jury trial jury decision of the case with the trial deliberations
Without Experience With Experience
E. Juror Electronic Retrieval of Evidence During Deliberations Our court provides the jurors with a simple, easy, high tech solution to view all admitted evidence electronically in the jury deliberation suite without the assistance of any court personnel.156 This saves jurors valuable time in hunting for and in passing around the one set of hard copy exhibits traditionally admitted into evidence.157 It allows all of the jurors to view the
153. Id. at 515, 518–19, 520. 154. Id. at 533. 155. Id. at 516. 156. The computer that runs this software cannot perform any other functions in the jury deliberation room and has an easy-to-use instruction sheet that jurors have no problem following. This is a tribute to the advancing curve of technology. In 1991, a distinguished U.S. district judge suggested that courts might provide technology to do this, but alluded to the fact that it would require an “operator” in the jury deliberation room. Robert M. Parker, Streamlining Complex Cases, 10 REV. LITIG. 547, 558 (1991). 157. Our juries also receive the traditional single hard copy of exhibits.
77 evidence on a large monitor in the jury deliberation room. The Jury Evidence Recording System (JERS) allows all types of evidence admitted during trial: exhibits, photographs, videos, and audio recordings to be viewed and/or listened to electronically by the jurors during deliberations.158 This includes an exhibit list by number and description that simply requires the jurors to click on the exhibit for all jurors to see and/or hear.
F. Debriefing the Jury Following Their Verdict The process of debriefing the jury after their verdict makes jurors feel as important as they truly are. It is best described by my former law clerk Kirk W. Schuler: Judge Bennett hurries to the jury room to “debrief” the jury. The judicial clerk follows in order to retrieve the exhibits. The exhibits, however, provide little motivation for heading to the jury room compared to the ensuing dialogue between the judge and the jury. The debriefing is informal. Judge Bennett simply thanks the jurors for their service and asks them if they have any questions. The jury is always anxious to ask questions. Moreover, the jurors are usually unafraid to ask anything because of the friendly rapport the judge established with them during voir dire. Frequently, their questions are about the case at bar, but sometimes they are about the legal process in general. Often, jurors want to know about Judge Bennett’s job. If the trial was a criminal case and the defendant was found guilty, the jurors inevitably ask what happens next—when is sentencing, what happens at sentencing, and what the defendant’s likely punishment will be. Questions about different trial strategies are common, and often jurors comment on what they found credible or incredible, or what they would have liked to have heard more about. The jurors love the chance to speak with the judge. Sometimes the debriefing lasts up to an hour; other times it may last just a few minutes. It usually depends on Judge Bennett’s schedule, as most jurors are willing to stay longer to discuss matters with the judge if time allows. After days of sitting in trial without uttering a word, jurors finally get their chance to speak up. It is cathartic, and no
158. The JERS system stores all exhibits submitted prior to trial and then a law clerk, court room deputy, or judge designates just those exhibits admitted to be shown to the jury. JERS also has the ability to restrict how jurors may view a specific exhibit, e.g. video only, audio only, or zoom off or on. JERS can also capture through the courtroom electronic evidence presentation system exhibits not admitted prior to trial.
78 doubt makes their experience better. It is also amazing to listen to, and one of the best perks of being Judge Bennett’s judicial clerk. For a moment, all the legal research, legal writing, and legal “life” that define a clerk’s job are suspended. In their place, in that small jury room, are the unmistakably real explanations, questions, and thoughts of a working single mother, a retired Vietnam veteran, a college student, or even a new American citizen. Apart from the verdict, it is one of the purest connections between the law and the layperson.159 The highly respected New Jersey Supreme Court recently banned, in no uncertain terms, the practice of post-verdict “debriefing” a jury, off the record and outside the presence of counsel, as an impermissible ex parte communication.160 While I respect this holding, I disagree with it.161 It is important for the legal profession to monitor this issue as other courts will now undoubtedly grapple with it.
159. Schuler, supra note 13, at 483. One of the purposes of debriefing the jury is to obtain jury feedback as “an invaluable evaluation tool, and operates as a way to make sure each jury trial thereafter is one step better.” Id. 160. Davis v. Husain, 106 A.3d 438, 447–49 (N.J. 2014). After the jury returned a modest verdict for the plaintiff, and while the judge was debriefing the jurors without counsel present and off the record, one juror told the judge “she was surprised that defendant had not placed his hand on the Bible before he testified.” Id. at 441. The trial judge then let the lawyers know of this juror comment because at oral argument on a remittitur motion defense counsel informed the court the defendant didn’t place his left hand on the bible for religious reasons. Id. at 442. In remanding the case for further proceedings, the court established a bright-line rule: “We therefore prohibit, as part of our constitutional supervisory authority over the conduct of criminal and civil trials in this State, ex parte post-verdict communications between a trial judge and jurors.” Id. at 447. 161. This issue is fodder for its own article. At bottom, I trust trial judges not to ask inappropriate questions during debriefing and to immediately notify counsel and make a record on anything a juror inadvertently discloses that might raise a concern. In twenty-one years of debriefing hundreds of criminal and civil juries, I advised counsel and made a record twice based on statements made by a juror. Both cases settled before post-trial hearings were held. While a judge could debrief the jury on the record, with counsel present to avoid the ex parte concern in Davis v. Husain, the debriefing would lose its informality and candor and dramatically stifle the discussion. As an experiment years ago, I debriefed a few juries with counsel present. The jurors said virtually nothing. I have also asked jurors if they would prefer to have counsel present and they never have. The alternative of not debriefing the jury has two serious ramifications. First, it deprives me of the opportunity to let the jurors know in the informal setting of the jury deliberation room how much our court appreciates their efforts by taking the time to chat with them and answer their questions. It allows me to pass out the juror evaluation forms and to shake the hands of each juror. Sometimes the jurors ask for selfies with me or want me to autograph their set of instructions. Second, in those rare instances in which a juror discloses something the parties need to know, debriefing provides a vehicle for shedding light on what might have been undisclosed juror misconduct.
79 G. Empowering the Jury and Obtaining Crucial Feedback—Juror Evaluations of the Judge, Lawyers, and Trial Process In every jury trial in my quarter century as a federal trial court judge, I have sought written input about the trial from the jurors after their verdict. During jury selection, I inform the prospective jurors that I will meet with them after their verdict to debrief them, try and answer any questions they have, to thank them for their service, and to give them a stamped, self- addressed envelope with a questionnaire to evaluate me as the trial judge, the lawyers, and the trial process. They can take the form home, fill it out at their leisure, and send it back in the envelope. It is optional, but most jurors take advantage of this trial innovation. I explain to the prospective jurors that we have made major changes in the way our court conducts trials based on the important feedback we have received from jurors over the years. When I meet with the jurors after their verdict, I hand each an envelope and explain again that, while filling it out is optional, I greatly appreciate and value their feedback. Can you imagine buying a new car and not having the manufacturer ask for your feedback? It is hard for me to imagine why a trial judge would not want, seek, and benefit from such feedback. Once the questionnaires are returned, we share the pertinent portion of the evaluation with each lawyer. In the age of competitive advertising, I do not want the lawyers to see and be able to use their adversaries’ evaluations for their economic advantage. I find that the jurors’ evaluations are almost always spot on! The best way to improve yourself, and any process, is to obtain feedback. The famous entrepreneur and philanthropist, Bill Gates, has said: “We all need people who will give us feedback. That's how we improve.”162
H. Interim Summaries or Arguments by Counsel in Complex or Lengthy Civil Jury Trials The Arizona Jury Project suggested educating judges and lawyers about interim summaries or arguments by counsel in certain cases.163 The Committee did not think it necessary to establish a rule giving direct authority to judges for this, because they believed the current Arizona rules of procedure in both civil and criminal cases gave judges authority by
162. Bill Gates, Teachers Need Real Feedback, TED (May 2013), https://www.ted.com/talks/bill_gates_teachers_need_real_feedback/transcript?language=en. 163. THE POWER OF 12, supra note 12, at 93 (Recommendation 35: “Trial judges and attorneys should be made more aware of the advantages of interim summaries for the jury after discrete segments of especially long trials or trials in unusually complex cases.”).
80 “implication.”164 Nor did the Committee feel it necessary to provide a rule about the “technique” for interim arguments or summaries.165 The Seventh Circuit Project actually tested the use of interim statements.166 The Commission suggested some standards while testing interim statements.167 These included time limits, no advance notice, the exclusion of witnesses other than those not subject to Federal Rule of Evidence 615 (sequestration), and allowing their use before or after a witness’s testimony.168 Interim statements by counsel were used in seventeen jury trials.169 This study is important because the difference in the evaluation of this innovation by judges who used it and those who did not is significant.170 After using interim statements, eight-eight percent of the judges indicated they would use them again.171 Only 23% of the jurors who did not use interim statements thought they would be helpful.172 Only 8% of judges and 4% of lawyers in the study thought that the use of interim statements decreased the efficiency of the trial.173 A significant majority of the judges who used interim statements thought the statements both increased the jurors’ understanding of the case and increased their own satisfaction with the trial process.174 Thirty-two percent (32%) of the jurors found the interim summaries to be most helpful in introducing evidence; 26% in summarizing evidence that had just been presented; and 34% found both useful; only 8% of jurors did not find interim statements useful at all.175 Another study indicated that only 1% of state and federal courts allow interim statements.176 I have yet to use interim statements in my civil jury trials, but now have it as an option in the trial management order—if both
164. Id. at 93 n.62. 165. Id. 166. AM. JURY PROJECT COMM’N, supra note 26, at 32–35, 63–65. The Final Report cites the ABA American Jury Project Principle 13 and Standard 13(G) as encouraging parties and judges to be open to the use of interim statements as one means of enhancing “juror comprehension.” Id. at 32. 167. Id. at 33–34. 168. Id. at 33. 169. Id. at 34. 170. Id. at 34–35, 63–65. 171. Id. at 63. 172. Id. at 65. 173. Id. at 63. 174. Id. 175. Id. at 65. 176. Hannaford-Agar, supra note 115, at 7.
81 parties agree. I want to have some personal experience with this innovation before I allow it over lawyers’ objections.
I. Allowing Jurors to Discuss the Evidence Among Themselves Before Deliberations This is without question the most controversial innovation of the Arizona Jury Project.177 Perhaps so controversial that the Seventh Circuit Project did not test it or even mention it in their Final Report. The Arizona Jury Project’s recommendation on this issue, title 37 “Allow Jurors to Discuss the Evidence Among Themselves During the Trial,” says: “After being admonished not to decide the case until they have heard all the evidence, instructions of law and arguments of counsel, jurors should also be told, at the trial’s outset, that they are permitted to discuss the evidence among themselves in the jury room during recesses.”178 The Committee concluded that the traditional approach of not allowing the jurors to discuss the evidence until deliberations is “unnatural, unrealistic, mistaken and unwise.”179 The Committee further concluded the traditional rule was “anti-educational, nondemocratic and not necessary to ensure a fair trial.”180 Benefits of their new recommendation, according to the Committee, included: increasing juror comprehension; questions by jurors could be asked of one another in a timely way that may be forgotten by the time of deliberations; cliques might be reduced through early venting; and tentative judgments could be tested by group knowledge.181 The Committee recommended to the Arizona Supreme Court that this innovation be adopted for both civil and criminal trials.182 The Court adopted it only for civil cases.183
177. Diamond et al., supra note 31 (labeling juror discussion of the evidence before deliberations “the most controversial” of the changes recommended and adopted as a result of the Arizona Jury Project). 178. THE POWER OF 12, supra note 12, at 96. 179. Id. at 97. 180. Id. 181. Id. at 98. 182. Id. 183. ARIZ. R. CIV. P. 39(f) (“If the jurors are permitted to separate during the trial, they shall be admonished by the court that it is their duty to not converse with or permit themselves to be addressed by any person on any subject connected with the trial; except that the jurors shall be instructed that they will be permitted to discuss the evidence among themselves in the jury room during recesses from trial when all are present, as long as they reserve judgment about the outcome of the case until deliberations commence. Notwithstanding the foregoing, the jurors’ discussion of the evidence among themselves during recesses may be limited or prohibited by the
82 Any judge considering adopting or any lawyer thinking to urge this innovation should carefully study Professor Shari Diamond’s seminal article.184 The article includes a study of fifty videotaped actual jury deliberations in Pima County (Tucson) Arizona.185 This innovation appears to be neither the panacea thought by its advocates, nor suffer the doomsday consequences predicted by its detractors.186 In another national study, only 6% of state civil jury trials and 1% of federal trials allowed jurors to discuss the case among themselves prior to deliberations.187 Again, I have yet to use this innovation in my civil jury trials, but now have it as an option in the trial management order to use if both parties agree. I want to have some personal experience with this innovation before I allow it over lawyers’ objections.
VI. RIGHT NO. V: JURORS HAVE THE RIGHT TO JUROR CREATURE COMFORTS If more judges approached jury trials with the mantra WWJW, juror creature comforts would be of greater concern. While the Arizona Jury Project included in its Proposed Bill of Rights for Arizona Jurors that they be “[p]rovided with comfortable and convenient facilities,” they did not expand
court for good cause.”) A typical jury instruction in Arizona Superior Courts for this innovation reads like this: You jurors may discuss the evidence during the trial, but only among yourselves and only in the jury room when all of you are present. Despite what you have heard or experienced in other trials, where jurors cannot discuss the evidence among themselves during the trial, that rule has been changed in Arizona to permit jurors to talk with each other about the evidence during civil trials like this one. The reason for this change is that the courts believe that juror discussions during trial may assist jurors in understanding and recalling the witnesses, their testimony and exhibits. The kinds of things you may discuss include the witnesses, their testimony and exhibits. However, you must be very careful not to discuss or make up your minds about the final outcome, or who should win the case, until you have heard everything—all the evidence, the final instructions on the law and the attorneys’ arguments—and your deliberations have begun. Obviously, it would be unfair and unwise to decide the case until you have heard everything. Diamond et al., supra note 31, at 6 n.11 (citation omitted). 184. Diamond et al., supra note 31. 185. Id. at 17. 186. Id. at 73–79. 187. Hannaford-Agar, supra note 115, at 7.
83 on this statement.188 Our court provides jurors with the following specific creature comforts.
A. Comfortable Seating in the Jury Box I encourage all judges to sit in the courtroom jury box. Don’t just sit for a minute or two, but work there for forty minutes or so to get a sense of how comfortable the juror seating is. If it is not comfortable, do something about it.
B. Stretch Breaks Sitting all day listening to lawyers and witnesses drone on is no easy task. Thus, giving jurors “stretch” breaks every forty minutes or so, and every time a new witness is sworn in, is critical to keeping the jurors’ attention. I inform jurors in lay terms at the beginning of the trial about the federal witness sequestration rule—Federal Rule of Evidence 615. Thus, every time a witness steps off the witness box189 the jurors are instructed to take a stretch break. The break lasts until I have sworn in the new witness.190 If a witness goes more than forty minutes or so, I politely interrupt and give everyone in the courtroom, including the witness, a much appreciated stretch break.
C. More Frequent Stretch Breaks and Standing to Listen to Testimony Jurors with back or other health problems affecting their ability to sit are seated in the back row of the jury box. This allows them to stand more frequently, whenever they want, without affecting the sight lines of the other jurors.
188. THE POWER OF 12, supra note 12, at 132. 189. Years ago, I moved the witness box to the middle of the courtroom, directly across from the jury box to help create an evidence corridor for jurors where they can look straight ahead and see the witness and the evidence projected on a large screen above the witness, allowing jurors to see the evidence, the witness, and the witnesses’ demeanor all at once. The trend of placing monitors in the jury box, usually shared by two or more jurors, is well intended, but actually counterproductive for jurors. In such a courtroom design, it is virtually impossible for jurors looking down at the monitors studying exhibits to be able to see the witnesses’ demeanor. In one sense, this may not be all bad because, as I have recently written, the stock jury instructions on witness demeanor fly in the face of well-established cognitive psychological principles. Bennett, supra note 102, at 1375. 190. I often chuckle to myself when a new witness walks into the courtroom to be sworn in. I wonder if they think they have walked into a yoga studio, because most folks in the courtroom, including the parties, lawyers, jurors, and myself are in various poses of stretching.
84 D. Nutritious Snacks In addition to the ubiquitous coffee and donuts, we provide, each day in the jury room, fresh fruit and a variety of healthy snack bars. We also provide unlimited bottled water. There are also vending machines available in a public area for the jurors’ use.
E. Microwave Oven and Refrigerator We provide a full-size refrigerator and microwave in the lobby area of the juror deliberation suite. This enables jurors to bring their own snacks and beverages and accommodates any special dietary or health needs.
F. Cookies When all else fails to make a trial a positive experience for jurors, trial judges should try bribing them. In trials of four days or more, I have, for years, baked cookies for the jurors. It works wonders. I personally bake them and leave them a note, in the jury room, on the plate of cookies explaining that they were baked with my own hands. They frequently comment on the juror evaluation forms how much they appreciate this personal touch. When trying cases in other districts, I buy treats for the jurors but find that, while jurors appreciate it, this lacks the more personal touch of baking the cookies myself.
CONCLUSION “The juror was a central figure in the creation of America. As individual hero, [a] collective voice of protest, or part of an institution that symbolized a democratic, local, and leveling power, jurors intertwined themselves [in] the American character.” – Andrew Guthrie Ferguson191 As a trial judge, my awe and respect for jurors has grown steadily since graduating from law school forty years ago. This has led to a jury-centered approach to judging. This approach is consistent with and reinforces the historical understanding of jurors as constitutional officers. It is surprising given the distinctive role of jury trials in this nations’ history that jurors do
191. Ferguson, supra note 8, at 1115 (footnotes omitted).
85 not have their own widely adopted bill of rights. My jury-centered approach to judging reflects and incorporates the results of the two major studies on jury trial innovations: the Arizona Jury Project (state court) and the Seventh Circuit Bar Association American Jury Project (federal courts). The pivotal question in this approach is: what would jurors want? (WWJW). The answers to this simple, but rarely asked question, form the basis for this article’s proposed Juror Bill of Rights. These rights, focusing on jury trial innovations, ensure proper respect for the constitutional role of jurors and simultaneously enhance the fairness of jury trials. My dear colleague and uber passionate jury trial sage, Judge William G. Young, from the District of Massachusetts, has written: “Having set themselves adrift from their constitutional partner—The American Jury— federal trial judges now find themselves bereft of the central wellspring of their moral authority.”192 Adopting this Juror Bill of Rights would go a long way towards mooring trial judges to their historic constitutional partners. My three goals were modest. The first was to articulate my WWJW approach to judging through these five juror rights. The second was to stimulate further discussion and writing about ideas that, not only increase the fairness of jury trials for the parties, but help produce hundreds of thousands of roving community ambassadors for the constitutional rights of trial by jury. My third goal was to help nudge a slow-moving judiciary towards change remembering, as Martin Luther King, Jr., proclaimed: “The arc of the moral universe is long but bends towards justice.”193 However, it does not bend on its own. Adopting and implementing this Juror Bill of Rights for jurors helps bend the arc towards justice.
192. Young, supra note 1, at 81. 193. See TAYLOR BRANCH, PARTING THE WATERS: AMERICA IN THE KING YEARS 1954–63, at 197 (1988) (“[O]ne of King’s favorite lines, from the abolitionist preacher Theodore Parker, [was] ‘The arc of the moral universe is long, but it bends toward justice.’”).
86 Eight Traits of Great Trial Lawyers: A Federal Judge’s View on How to Shed the Moniker “I am a Litigator”
Judge Mark W. Bennett*
I. INTRODUCTION...... 1 II. SPELLBINDING RACONTEUR ...... 4 III. GRIT ...... 16 IV. VIRTUOSO CROSS-EXAMINER ...... 20 V. PREPARATION...... 29 VI. UNFAILING COURTESY ...... 32 VII. GREAT LISTENER...... 34 VIII. UNSURPASSED JUDGMENT...... 37 IX. REASONABLENESS...... 41 X. CONCLUSION ...... 42
I. INTRODUCTION
Walk into any state or federal jury trial from Alaska to Florida, or from Maine to Hawaii, and you will likely discover the long-awaited cure for insomnia. Bottle it, sell it on a TV infomercial, and you could get rich. So what is this cure? It is boredom: “the sounds of lawyers droning on and on with their technical arguments, their redundant questioning of reluctant witnesses, the subtle points which are relevant only to them.”1 George Bernard Shaw might as well have been describing modern “litigators” when he observed that “[t]he single biggest problem in communication is the illusion that it has taken place.”2 The vast majority of lawyers do not communicate effectively with jurors. How do I know this? As a federal trial court judge for nearly a quarter century, I have carefully observed lawyers from all over the country try cases in federal courts.3 More importantly, at the
* Mark W. Bennett is in his twentieth year as a U.S. district court judge for the Northern District of Iowa. He is a long-time adjunct professor at the Drake University School of Law. 1. Dana K. Cole, Psychodrama and the Training of Trial Lawyers: Finding the Story, 21 N. ILL. U. L. REV. 1, 1 (2001). 2. THOMAS J. VESPER, UNCLE ANTHONY’S UNABRIDGED ANALOGIES: QUOTES, PROVERBS, BLESSINGS & TOASTS FOR LAWYERS, LECTURERS & LAYPEOPLE 862 (Thomas J. Vesper, ed., 3d ed. 2012). 3. I was a U.S. magistrate judge for nearly three years in the Southern District of Iowa (1991–94) before my appointment to the Northern District of Iowa
87 2 THE REVIEW OF LITIGATION [Vol. 33:1 conclusion of each trial, I have given every civil and criminal juror a questionnaire to evaluate the lawyers (and myself as the trial judge). Reading thousands of these juror evaluations has given me rare insight into how jurors view trial lawyers.4 After all these years as a federal trial court judge, I remain shocked that lawyers with both the perseverance to make it through law school and the courage to enter a federal courtroom are still so lacking in the art of persuasion and in the traits necessary to become great trial lawyers. Many articles have been written about the vanishing civil jury trial,5 and I recently wrote about the rise of the “litigation industry” and the demise of trial lawyers through a mock obituary for the death of the American trial lawyer.6 In this Article, I as a district court judge in 1994. I have tried jury trials in four districts: both districts in Iowa, the District of Arizona, and the District of the Northern Mariana Islands (Saipan). I have also reviewed numerous trial transcripts while sitting by designation on the United States Courts of Appeals for the Eighth and Ninth Circuits. 4. After reading a verdict in open court, I debrief every juror in the jury room and answer their questions. As they are leaving, I give them a juror questionnaire, with a self-addressed stamped envelope, and ask them to fill it out at their convenience and mail it back to my chambers. I discuss this questionnaire with potential jurors in jury selection as a means of empowering them. I let them know that the lawyers and I are vitally interested in their feedback. I tell them that our court has made many changes in the way we do our business based on juror feedback over the years. When the questionnaires are returned, my judicial assistant shares the information with the attorneys for their review. 5. See, e.g., John H. Langbein, The Disappearance of Civil Trial in the United States, 122 YALE L.J. 522, 524 (2012) (exploring the historical rise and fall of the civil jury trial); Mark W. Bennett, Judges’ Views on Vanishing Civil Trials, 88 JUDICATURE 306, 306 (2005) (discussing that the decline of jury trials is a “grave and urgent concern”); Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459 (2004) (discussing the decline in jury trials). 6. Mark W. Bennett, Obituary: The American Trial Lawyer; Born 1641-Died 20??, A.B.A. SEC. LITIG. J., Spring 2013. In that mock obituary, I wrote:
ALs [American Litigators, replacing the ‘deceased’ American trial lawyers (ATLs),] do not try cases; ALs ‘litigate’ them. ALs populate large and small firms alike. Most importantly, ALs are defined by their lack of real jury trial experience. They spew courtroom jargon to clients and opposing counsel as if they were real trial lawyers . . . . ALs prance around their law firms espousing how they routinely pound opponents into the ground in the courtroom. They don’t. The closest they get to
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share four decades of experience, including thousands of hours spent observing trial lawyers, in hopes of reversing the trend of “the dying trial lawyer” and helping attorneys who seek to become the next generation of Clarence Darrows7 and Gerry Spences.8 During my time as a federal trial court judge, I have identified—and this Article will discuss—eight traits of highly effective trial lawyers: (1) unsurpassed storytelling skills, (2) gritty determination to become a great trial lawyer, (3) virtuoso cross- examination skills, (4) slavish preparation, (5) unfailing courtesy, (6) refined listening skills, (7) unsurpassed judgment, and (8) reasonableness. By mastering these, one can become a feared and admired trial lawyer.9 Of course, readers will not become great trial lawyers by reading and memorizing these eight traits. This Article is not a trial lawyer’s “magic bullet” that can be obtained from an infomercial by
trial is as office Clarence Darrows. They file motions as if they are preparing to go to trial and bill endless hours for developing untested and unrealistic trial strategies—knowing they will never be used. ALs earn a living by generating Everest-like mountains of paper. They are paper tigers. They never work alone, always traveling in packs. As trial dates approach, their relentless bravado evaporates into unlimited excuses to settle. They will do virtually anything to avoid trial.
Id. at 4, 6–7.
7. See Clarence Darrow, ENCYCLOPEDIA BRITANNICA ONLINE ACADEMIC EDITION, http://www.britannica.com/EBchecked/topic/151820/Clarence-Darrow (last visited May 3, 2013) (describing Darrow as a “lawyer whose work as defense counsel in many dramatic criminal trials earned him a place in American legal history”). 8. See Gerry Spence, http://www.gerryspence.com/ (last visited May 3, 2013) (“Gerry Spence, born, reared and educated in Wyoming, is recognized nationwide for his legacy of powerful courtroom victories.”). 9. The authors of a recent article on twenty-first century litigators’ lack of jury trial experience advance a compelling argument that the failure to disclose this lack of trial experience to prospective clients is an ethical violation. Tracy Walters McCormack & Cristopher John Bodnar, Honesty is the Best Policy: It’s Time to Disclose Lack of Jury Trial Expereince, 23 GEO. J. LEGAL ETHICS 155 (2010). This is all the more reason to become a real trial lawyer and shed the “litigator” moniker.
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making three monthly payments. However, by identifying these traits and working hard to develop and enhance them, attorneys can improve their jury-trial effectiveness.10 This Article’s limited context precludes a full explanation of how one masters these traits or why doing so will make you a great trial lawyer. My more modest and achievable goals are to help lawyers identify the eight traits of great trial lawyers and to illuminate a path toward mastering them.
II. SPELLBINDING RACONTEUR
“Storytelling, especially among lawyers, is a dying art.” —Tom Galbraith11
A truer sentence about lawyers has never been written. Where have all the raconteurs gone? Why are so precious few lawyers great storytellers? This Article will explore many attributes that separate great trial lawyers from average and below-average ones. However, there is one trait that always separates great trial lawyers from lesser ones: superb, masterful storytelling. I know of no exception. This does not mean that all great storytelling lawyers are great trial lawyers—but that all great trial lawyers are great storytellers. Forms of storytelling probably precede the development of most spoken languages. Petroglyphs (rock engravings) told stories from times dating at least as far back as the Neolithic Era or Early
10. In my experience, some trial lawyers never improve or improve very slowly. For these lawyers, experience is not helpful. On the other hand, lawyers who are highly motivated and work hard at improving their trial skills improve rapidly with each trial. One lawyer, who was a “C+” lawyer on a good day, returned from three weeks at Gerry Spence Trial Lawyers College and, in her next trial, was a solid “A-” trial lawyer. She gave the opening statement and closing argument in a narrative from the perspective of the five kilograms of drugs her client was charged with in a drug conspiracy. It was mesmerizing. Often, experience is vastly overrated—and this is great news for young, aspiring trial lawyers. One of the very best opening statements I have ever heard was by a third- year law student under the supervision of her law school clinic professor. 11. Tom Galbraith, Storytelling: The Anecdotal Antidote, 28 LITIG. 17, 17 (2002).
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Bronze Age (between 8000 and 1000 BC), appearing in the northern Chinese regions of in Inner Mongolia and Ningxia.12 As old as the art of storytelling is, one would think that lawyers would have mastered it.13 They have not. Is the legal academy to blame for poor storytelling skills among lawyers? While criticism of legal education is certainly reaching a modern-day zenith,14 it would be unfair to place too much of the blame on the education system, since “[n]arrative theory and storytelling have emerged as threads in legal scholarship steadily
12. See Paola Dematte, Beyond Shamanism: Landscape and Self-Expression in the Petroglyphs of Inner Mongolia and Ningxia (China), 14 CAMBRIDGE ARCHAEOLOGICAL J. 5, 12 (2004) (explaining that petroglyphs in Inner Mongolia and China animated hunting, early pastoral subsistence, and primitive farming, including Megaloceros (ostrich) and Elaphurus davidianus (deer), “which became extinct in the area early in the post-Pleistocene”); the term “petroglyph” comes from the Greek words petro, meaning rock, and glyph, meaning engraving or drawing. Petroglyph, OXFORD DICTIONARIES, www.english.oxforddictionaries.co m/definition/petroglyph (last visited May 3, 2013). 13. Some members of the legal academy claim that lawyers have mastered it—the only problem is, those lawyers reach “back to the days of the classical Greek orators who were lawyers.” Nancy Levit & Allen Rostron, Calling for Stories, 75 U. MO. K.C. L. REV. 1127, 1127 (2007) (citing THE INSTITUTION ORATORIA OF QUINTILIAN (H.E. Butler trans., Harv. U. Press 1966)); see also Nancy Levit, Legal Storytelling: The Theory and the Practice-Reflective Writing Across the Curriculum, 15 J. LEGAL WRITING INSTITUTE 259, 262 n.7 (2009) (citing THE INSTITUTION ORATORIA OF QUINTILIAN (H.E. Butler, trans., Harv. U. Press 1966) (beginning a discussion of the topic with “[i]n the days of the classical Greek Orators who were lawyers . . . .”). 14. See, e.g., A. Benjamin Spencer, The Law School Critique in Historical Perspective, 69 WASH. & LEE L. REV. 1949, 1949 (2012) (“Contemporary critiques of legal education abound. This arises from what can be described as a perfect storm: the confluence of softness in the legal employment market, the skyrocketing costs of law school, and the unwillingness of clients and law firms to continue subsidizing the further training of lawyers who failed to learn how to practice in law school. As legal jobs become increasingly scarce and salaries stagnate, the value proposition of law school is rightly being questioned from all directions.”); Alex M. Johnson, Jr., Think Like a Lawyer, Work Like a Machine: The Dissonance Between Law School and Law Practice, 64 S. CAL L. REV. 1231, 1252 (1991) (“At best, elite law schools prepare their top five students to become law professors but fail to prepare the rest of their students to become practicing lawyers.”); and Johnson, supra at 1252–56 (cataloguing some of the current problems with legal education).
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over the past 20 years.”15 Regardless, I have never heard any judge comment that lawyers are improving in the art of storytelling. Why is this? Perhaps Professor Nancy Rapoport described it best:
Few law professors stay in touch with the practice of law [and, as a result, w]e just don’t have much credibility when it comes to telling students how lawyers work, or what good lawyers need to know, because few of us stayed long enough in the practice of law to have been considered good lawyers.16
Professors Brian J. Foley and Ruth Anne Robbins have asked, “[W]hy does no one teach lawyers how to tell stories?”17 They argue that this is because few actually know how to tell stories. In their view, law professors’ lack of jury trial experience also explains why the vast majority of the legal academy’s writings about
15. Carolyn Grose, Storytelling Across the Curriculum from Margin to Center, from Clinic to the Classroom, 7 J. ASS’N. OF LEGAL WRITING DIRS. 37, 37 (2010). Storytelling and telling the “narrative” have generated a lot of interest among academics, enough to produce law review articles examining “the sudden, and rather vehement, resistance to legal storytelling.” Jane B. Baron, Resistance to Stories, 67 S. CAL. L. REV. 255, 256 (1994). Baron also notes that “[t]he words ‘storytelling’ or ‘narrative’ now frequently appear in the titles of articles on a bewildering variety of topics, suggesting that there is almost no legal subject that cannot be seen as some form of ‘story.’” Id. at 255 n.3. 16. Nancy Rapoport, Where Have All the (Legal) Stories Gone?, M/E INSIGHTS, at 7, 11 (Fall 2009). With all due respect to my hundreds of friends in the legal academy, had they stayed longer in their firms, they may have become good “litigators,” but few, if any, would have been great trial lawyers. I am quite sure that very few of the nation’s greatest trial lawyers were on law review or in the top 5% of their law school class. In my view, the skill sets for being a great law professor and a great trial lawyer are quite different. The simple truth is that learning legal analysis and “to think like a lawyer” not only does not help very much in being a great trial lawyer, it is often counterproductive. You may win motions to dismiss and summary judgment motions with terrific legal analysis, but I assure you, you will not win jury trials with it. 17. Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Fact Sections, 32 RUTGERS L.J. 459, 461 (2001).
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storytelling focus on brief writing and not on trying cases to judges and juries.18 Lawyers, like everyone else, intuitively understand that storytelling is a very powerful form of communication. “[W]e dream in narrative, daydream in narrative, remember, anticipate, hope, despair, believe, doubt, plan, revise, criticize, construct, gossip, learn, hate, and live by narrative.”19 I recall from my Torts class in law school forty-one years ago, that one of the first opinions we studied was Chief Justice Cardozo’s famous discussion of causation in Palsgraf v. Long Island Railroad Co.20 I could not now accurately explain the legal concept of “proximate cause” without grabbing my most recent jury instruction on it. However, I still vividly remember the small, newspaper-covered package falling to the ground, the exploding fireworks, the ensuing shockwave, and the scale at the other end of the train platform falling on poor Ms. Palsgraf, who was on her way to Rockaway Beach.21 It is the compelling story that stays in my mind.22 Trial lawyers’ major problem is that most of them tell stories like lawyers and not storytellers. This simple truth prompted acclaimed Wyoming trial lawyer Gerry Spence to write:
[L]awyers are not trained as dramatists or storytellers, nor are they encouraged to become candid, caring, and compassionate human beings. Most could not tell us the story of Goldilocks and the Three Bears in any
18. See, e.g., id. (discussing storytelling in the context of brief writing); see also Philip N. Meyer, Convicts, Criminals, Prisoners, and Outlaws: A Course in Popular Storytelling, 42 J. LEGAL EDUC. 129 (1992) (offering suggestions to improve law school appellate-writing coursework). 19. Nancy Levit, Reshaping the Narrative Debate, 34 SEATTLE U. L. REV. 751, 758 (2011) (citing Bret Rappaport, Tapping the Human Adaptive Origins of Storytelling by Requiring Legal Writing Students to Read a Novel in Order to Appreciate How Character, Setting, Plot, Theme, and Tone (CSPTT) Are as Important as IRAC, 25 T.M. COOLEY L. REV. 267, 268 n.2 (2008)). 20. 162 N.E. 99 (N.Y. 1928). 21. Id. 22. See Kenneth D. Chestek, Judging by the Numbers: An Empirical Study of the Power of Story, 7 J. ASS’N LEGAL WRITING DIRS. 1, 3 (2010) (suggesting that storytelling in appellate briefs is more persuasive than pure logic argument).
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compelling way. We would be fast asleep by the time they got to the first bowl of porridge.23
Spence then gives an example of how a lawyer might tell the story of Goldilocks and the Three Bears:
Once upon a time in an unspecified and otherwise unidentified place was found, upon reasonable inquiry, a certain female child who allegedly bore the given but unlikely appellation of Goldilocks. She ambulated into and around a conifer growth one day and, unintentionally and without malice aforethought, lost her directions and was thus unable to ascertain whether she was proceeding in a northerly or southerly direction. By random unanticipation the said female child came upon an insubstantial abode constructed of conifers severed from the surrounding growth, and at said time and place, the said female child, allegedly named Goldilocks, entered, without invitation, inducement, or encouragement, the said structure, which, at said time and place, therefrom the rightful and legal owners had absented themselves. Thereupon she espied three bowls of various sizes containing a substance that, upon inquiry and investigation, proved to be a concoction created out of certain boiled meal, grains, and legumes commonly known as porridge.24
Another classic example of the unfortunate way lawyers tell stories is this version of “The Three Little Pigs,” called “The Trio of Diminutive Piglets,” as told by a lawyer:
Whereas these said piglets reached the age of majority; Whereas the sow desired the piglets to become self-sufficient;
23. GERRY SPENCE, O.J.: THE LAST WORD: THE DEATH OF JUSTICE 113 (1997). 24. Id. at 113–14.
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It was therefore resolved that this said trio of piglets should go forth into the world for the purpose of establishing their own domiciles. The initial piglet that went forth into the world met a homo sapien of the masculine gender who possessed a bundle of straw. The piglet inquired, “Would you be so kind as to bestow, devise and bequeath upon me that straw so that I may forthwith construct a dwelling?” The straw was bestowed upon him, and he constructed a dwelling. Presently along came a carnivorous lupine (hereafter referred to as “the Wolf”) and commenced to rap upon the portal and said, “Diminutive Porcine, Diminutive Porcine, grant me entry to thy abode.” After due consideration the piglet responded, “Not by the follicular outgrowth on my lower jaw bone.” “Then I’ll inhale and exhale massive quantities of air and cause your dwelling to implode!” said the Wolf.25
To become a great trial lawyer, one must make the transition from telling a story like a lawyer to mastering the art of storytelling. The analytical training one receives in law school—learning to “think like lawyers”—makes this task even more difficult. Because of this training, lawyers make simple events far more complicated than is necessary to win a jury trial. Lawyers are great at taking a six-second automobile accident and morphing it into a two-week jury trial. An average lawyer makes simple events complicated, but great trial lawyers make complex events simple. Gerry Spence described the experience of turning difficult fact patterns into approachable, simple stories for trial:
I have tried cases with many exhibits, cases that took months in which scores of witnesses were called,
25. Jill Schachner Chanen, Yarn Spinners: Storytellers’ No-Tech Craft Proves Refreshing, Educational, 83 A.B.A. J. 92, 93 (1997).
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cases with jury instructions as thick as the Monkey- Ward catalog and supposed issues as entangled as the Gordian knot. But I have never tried a complex case. . . . All cases are reducible to the simplest of stories. . . . The problem is that we, as lawyers, have forgotten how to speak to ordinary folks.26
Most trial lawyers simply do not comprehend the magical effect that simplifying cases has on jurors. If they did, they would try cases very differently.27 Indeed, emerging cognitive psychology research indicates that storytelling is the most powerful way to activate our brains.28 Indeed, storytelling has both a psychological and neurolgical component that explains the human predilection favoring the narrative.29 Law and storytelling have always been inextricably intertwined. All lawsuits (and criminal prosecutions) are stories about events gone bad: the breakup of a marriage or a business, a devastating physical or emotional injury, the alleged violation of a civil or constitutional right, a stock swindle, a drug deal gone bad. The list is endless. Every lawsuit is generated by the occurrence of events, and it is the explanation of these events that comprises the case narrative. A trial is “essentially a form of story-battle. In the courtroom, each attorney will tell the jury a different story, call witnesses to support that story, and make arguments for what a just
26. Gerry Spence, How to Make a Complex Case Come Alive for the Jury, 72 A.B.A. J. 62, 64–66 (Apr. 1986). 27. For example, a lawyer’s case narrative or story would be brought out in jury selection and delivered powerfully in a short opening; the direct examination questions would be simpler and shorter to allow the witnesses to better tell the story; the selection and sequencing of witnesses would be focused on telling the story; cross examination would be more laser-like, covering fewer points and significantly shorter; and after all the witnesses are called the case would already be nearly won, unless the closing argument was really bad. 28. Annie Murphy Paul, Your Brain on Fiction, N.Y. TIMES, Mar. 18, 2012, at SR6 (“Brain scans are revealing what happens in our heads when we read a detailed description, an evocative metaphor or an emotional exchange between characters. Stories, this research is showing, stimulate the brain and even change how we act in life.”). 29. TEDxTalks, TEDxGallatin - Amanda D'Annucci - Storytelling, Psychology and Neuroscience, YOUTUBE (Aug. 16, 2011), http://www.youtube.co m/watch?v=KKB_JVNGjLY
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verdict looks like according to the plot of the advocate’s told story.”30 Some trial lawyers fancy themselves good storytellers simply because they interpose an occasional anecdote, joke, famous quotation, or piece of advice their mother gave them as a child into their opening statements or closing arguments. However, as Nashville trial lawyer Phillip H. Miller has written, “A story is not a collection of facts interspersed with proverbs, analogies, metaphors, biblical references, song titles, and anecdotes.”31 Mr. Miller is spot-on, and most trial lawyers do not understand his point. Most lawyers think storytelling skills are important only for closing arguments and, perhaps, opening statements. I have heard many great closing arguments, even some by mediocre trial lawyers. But highly effective trial lawyers understand that their storytelling skills are crucial at all stages of the case. This includes jury selection, opening statements, direct and cross-examinations, and closing arguments, which should powerfully reinforce the unified story of the case. I have actually heard closing arguments that attempt to introduce or tell a different story than what was presented in the opening statement; this was not caused by any surprise evidence or a real need to change the story—just bad lawyering. Great trial lawyers work on the story of the case long before jury selection begins so that they are able to maintain a consistent and powerful story theme throughout the trial. One of the nation’s premier capital defense lawyers, Michael N. Burt, has written that the refinement of the story narrative begins long before the trial starts.32 Burt, who has appeared in my courtroom in a complex death penalty habeas case, observed that “[w]hatever jury selection strategy is employed, storytelling has its place.”33
30. SUNWOLF, PRACTICAL JURY DYNAMICS 272 (LexisNexis ed., 1st ed. 2004). 31. Phillip H. Miller, Storytelling: A Technique for Juror Persuasion, 26 AM. J. TRIAL ADVOC. 489, 489 (2003) (emphasis removed). 32. See Michael N. Burt, The Importance of Storytelling at All Stages of a Capital Case, 77 U. MO. K.C. L. REV. 877 (2009) (beginning his discussion of effective story telling with pre-trial events). Burt discusses, inter alia, the importance of using a storytelling narrative to convince prosecutors early in the proceedings not to seek the death penalty. Id. at 883–89. 33. Id. at 895.
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I have often wondered why the quality of opening statements is so incredibly low compared to the quality of closing arguments. Ninety-nine percent of lawyers should spend far more time than they do crafting a powerful story of the case for opening statements. The Northern District of Iowa’s local rules limit the length of opening statements to fifteen minutes.34 For nineteen years as a judge, I waived this rule in every case—always against my better judgment. Without fail, at the twenty- to thirty-minute mark, the jurors’ eyes started to glaze over. An hour into the opening statement, virtually every single juror had “the look.” In 2013, I stopped waiving the rule and the opening statements have improved. With only fifteen minutes, lawyers do not have time to bore the jurors with a witness- by-witness account of the testimony—the worst and most common approach to opening statements. Enforcement of the fifteen-minute rule virtually requires that the lawyers tell a story to maximize their time. Opening statements can also be made ineffective by a lawyers’ reliance on notes or typed text. I shudder when a lawyer takes a legal pad or typed pages of text to the podium for his or her opening statement. This is a harbinger that the opening statement will be mediocre at best and probably dead on arrival. Eye contact will be poor, the delivery will often be stiff, and the lawyer will shield himself or herself from the jury by standing behind the podium. I have never heard a great opening statement delivered from notes behind a podium. Period.35 Storytelling in opening statements must come from the heart. Jimmy Neil Smith, founder and president of the International Storytelling Center in Jonesborough, Tennessee, spoke to renowned storyteller Elizabeth Ellis about an interaction she had with a group of small children:
34. N.D. Iowa LR 83.5(a) (December 1, 2009), available at http://www.iand.uscourts.gov/e-web/documents.nsf/0/58BE642F7E9E99E286257 3C00000E093/$File/2009+Local+Rules+Redline+Version.pdf. 35. We make a podium available for lawyers to use for jury selection, opening statements, and closing arguments only if they want it. Unfortunately for the art of advocacy and for the jurors’ attention spans, most lawyers want it and use it.
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Suddenly, one of the children jumped up and said “Do you memorize those stories?” Before she could answer, the little boy next to him poked him in the ribs and said, “No, stupid! She knows them by heart.” “I chuckled inside,” says Elizabeth, “but I was struck by the truth of the child’s statement. No, my stories aren’t memorized. I do know them by heart. For if the story isn’t told through the heart, the story has little power. The stories that really move us are those that we learn, take in, and tell through the heart—not the head.”36
But how do trial lawyers, schooled in legal analysis, learn storytelling from the heart? Above all else, they must read everything they can on the art of storytelling. There is an amazing amount of published material, particularly available on the Internet. Some of this material is written by lawyers for lawyers,37 and some
36. JIMMY NEIL SMITH, HOMESPUN: TALES FROM AMERICA’S FAVORITE STORYTELLERS 328–29 (1988). Jimmy Neil Smith is the founder of both the National Storytelling Festival, first held in 1973 in Jonesborough, a tiny town in the mountains of Tennessee, and the National Storytelling Association, founded in 1975 in Jonesborough. About ISC, INT’L STORYTELLING CTR., http://www.storytellingcenter.net/experience/about-isc/ (last visited April 29, 2013). The National Storytelling Association is now known as the International Storytelling Center and its webpage boasts: “[A]fter years of scientific research in 17 different fields, analysts conclude that storytelling is our most powerful tool for effective communication.” Id. The webpage also hosts a storytelling blog, Story Revolution, which “pushes the envelope to bring new and innovative thinking to traditional narrative applications. Dedicated to exploring the next stage in the storytelling movement, discussions focus on the latest breakthroughs in applying storytelling and what’s on the horizon.” Story Revolution, INT’L STORYTELLING CTR., http://www.storytellingcenter.net/experience/about-isc/ (last visited April 29, 2013). 37. See, e.g., DAVID BALL, THEATER TIPS AND STRATEGIES FOR JURY TRIALS (3d ed. 2003) (providing practical theater and film techniques for trial lawyers to excel in the courtroom); JOHN D. MOOY, ADVOCACY AND THE ART OF STORYTELLING 1 (1990) (explaining that “storytelling . . . is a rhetorical device for spanning the gap between the legal world and the day-to-day world.”); Burt, supra note 32, at 879 (explaining how defense counsel in death penalty cases can develop an effective “mitigation counter-narrative” as a storyteller); Kenneth D.
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of it is written by storytellers for storytellers.38 There are national, regional, and local storytelling organizations, festivals, events, and short courses to participate in. Internet resources, including the website of TED, which hosts thousands of eighteen-minute or less talks on “ideas worth spreading,” provide ample examples of great storytelling. Two examples of compelling storytelling available on TED include Joshua Prager’s “In Search of the Man Who Broke My Neck”39 and Ben Dunlap’s “The Life-Long Learner.”40 If Mr. Prager can tell his incredibly rich and powerful story in under eighteen
Chestek, Judging by the Numbers: An Empirical Study of the Power of Story, 7 J. ASS’N LEGAL WRITING DIRS. 1, 3 (2010) (providing empirical evidence to conclude that story argumentation is persuasive to appellate judges and others); Foley & Robbins, supra note 17, at 461 (explaining how to write an excellent statement of facts section by focusing on key elements of storytelling: character, conflict, resolution, organization, and point of view); Miller, supra note 31 (explaining how to develop the skill of storytelling for use before a jury); Gerald Reading Powell, Opening Statements: The Art of Storytelling, 31 STETSON L. REV. 89 (2001) (discussing the significance of identifying the elements of a story in a lawsuit and the importance of storytelling in the opening statement); Jonathan K. Van Patten, Storytelling for Lawyers, 57 S.D. L. REV. 239 (2012) (articulating twenty-five specific propositions about storytelling techniques). 38. See, e.g., MADISON SMARTT BELL, NARRATIVE DESIGN (1997) (examining the strengths and weaknesses of twelve stories and explaining how to analyze a story’s use of time, plot, and character); K. SEAN BUVALA, HOW TO BE A STORYTELLER (2012) (including fifteen essays from master storytellers to teach the art of oral storytelling); JACK HART, STORY CRAFT: THE COMPLETE GUIDE TO WRITING NARRATIVE NONFICTION (2012) (providing a guide for true-life storytelling, focusing on story, structure, point of view, character, scene, action, dialogue, theme, reporting, narratives, and ethics); Andrew Stanton, The Clues to a Great Story, TED TALK (posted Mar. 2012) http://www.ted.com/talks/ andrew_stanton_the_clues_to_a_great_story.html (featuring Stanton, the writer behind the three “Toy Story” movies, discussing the greatest story commandment: “Make me care.”); NATIONAL STORYTELLING NETWORK http://www.storynet.org/about/index.html (last visited Sept. 29, 2013) (“The National Storytelling Network brings together and supports individuals and organizations that use the power of story in all its forms.”). 39. Joshua Prager, In Search of the Man Who Broke My Neck, TED TALK http://www.ted.com/talks/joshua_prager_in_search_for_the_man_who_broke_my_ neck.html (posted Mar. 2013) (relating his journey to Israel to find the man who made him a hemiplegic twenty years earlier). 40. Ben Dunlap, The Life-Long Learner, TED TALK http://www.ted.com/talk s/ben_dunlap_talks_about_a_passionate_life.html (posted Mar. 2007) (telling the story of a Hungarian Holocaust survivor that taught him the value of life-long learning).
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minutes, then surely attorneys can give a powerful opening statement in equal or less time.41 While mastering storytelling in trial will not come overnight, here are five quick tips to keep in mind. First, a good story can be relatively short: the 256-word Gettysburg Address said a great deal. On a related note, keep in mind that most audiences show up voluntarily. Juries do not. Second, keep it simple. Simple words should replace complex words. Simple sentences are more powerful and easier to remember than complex sentences. Third, summarizing each witness’s testimony renders your opening statement dead upon arrival. Fourth, a mediocre trial lawyer armed with graphics and PowerPoint is still a mediocre trial lawyer. Graphics work best in the context of telling a great story, but all too often they interfere with the story. Finally, speak in the active voice and present the story as your witnesses experienced it. This is critical—the most powerful and profound key to great storytelling. Instead of telling the jury “what the evidence will show,” lawyers would be well served by explaining what actually happened. This allows jurors to place themselves, as observers, into the story as it unfolds before them. Lawyers can practice storytelling during their day-to-day activities—while taking a bath, mowing the lawn, cooking dinner, or driving in the car. Practice need not be formal, and it can be done by simply picking out a nearby object, building, or person and spinning a yarn.
41. Watching Joshua Prager’s TED video demonstrates the wisdom of our local rule allotting only fifteen minutes for opening statements. The last three minutes and thirty seconds of his video (the portion past the fifteen-minute mark) lose some of Prager’s powerful effect, failing to hold viewers’ attention as effectively as the first fifteen minutes. Prager’s talk illustrates that one skilled in the art of storytelling can weave a powerful story in fifteen minutes or less. Prager, supra note 39.
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III. GRIT
“The only thing that is distinctly different about me is I am not afraid to die on a treadmill. I will not be outworked, period. You might have more talent than me, you might be smarter than me, you might be sexier than me, you might be all of those things—you got it on me in nine categories. But if we get on the treadmill together, there’s two things: You’re getting off first, or I am going to die. It’s really that simple.” —Will Smith42
Not all gritty trial lawyers are great trial lawyers, but all great trial lawyers have grit. Grit—what it is, who has it, and how it is measured—has been the subject of great interest to academic psychologists studying its role in achievement.43 Professor Angela Duckworth and her colleagues, who lead this field of research, define grit “as perseverance and passion for long-term goals.”44 Duckworth’s hypothesis “that grit is essential to high achievement”45 came out of interviews with professionals in law, medicine, investment banking, painting, academia, and journalism.46 When asked what qualities distinguish “star performers” in their respective fields, those interviewed answered “grit or a close synonym as often as talent.”47 They “were awed by the achievements of peers who did
42. Will Smith—Not Afraid to Die on a Treadmill.mov, YOUTUBE (Jun. 17, 2011), http://www.youtube.com/watch?feature=player_embedded&v=do qS35FfcUE. 43. For more information about the work of Professor Duckworth, a leader in this field, see Angela Duckworth, The Duckworth Lab, UNIV. OF PA., https://sites.sas.upenn.edu/duckworth (last visited Nov. 23, 2013) (providing, among other information, Duckworth’s “grit test” and information about participating in the lab’s research); see also Angela Duckworth, The Key to Success? Grit, TED TALK, (posted May 2013) http://www.ted.com/talks/angela_lee _duckworth_the_key_to_success_grit.html (discussing the need to emphasize grit in childhood education). 44. Angela L. Duckworth, Christopher Peterson, Michael D. Matthews & Dennis R. Kelly, Grit: Perseverance and Passion for Long-Term Goals, 92 J. PERSONALITY & SOC. PSYCHOL. 1087, 1087 (2007) [hereinafter Duckworth et al., Grit]. 45. Id. at 1088. 46. Id. 47. Id.
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not at first seem as gifted as others but whose sustained commitment to their ambitions was exceptional.”48 Many also “noted with surprise that prodigiously gifted peers did not end up in the upper echelons of their fields.”49 Talent and grit are very different characteristics.50 All great trial lawyers have both, but even one with unsurpassed talent, like a Gerry Spence, has no assurance of grit.51 Indeed, as Duckworth recently observed, “in most samples, grit and talent are either orthogonal or slightly negatively correlated.”52 Duckworth added that, in 1892, Sir Francis Galton studied the biographical information of highly successful judges, poets, scientists, statesman, and painters. Galton observed that high achievers were “triply blessed by ‘ability combined with zeal and with capacity for hard labour.’”53 A century later, educational psychologist Dr. Benjamin Bloom studied world- class chess players, mathematicians, sculptors, swimmers, pianists, and neurologists, and wrote that “only a few of these individuals were regarded as child prodigies by teachers, parents, or experts.”54 Rather, the individuals who became world class in their fields worked for ten-to-fifteen years, day after day, and had the “desire to
48. Id. 49. Id. 50. University of Texas men’s basketball coach Rick Barnes discussed grit during a recent interview: “I don’t know any program that has not gone through failure at some point. But the real measure of it is your grit. Are you tough enough to come back from it? And keep coming back, keep getting up. This group of guys, they have that grit.” Eric Prisbell, The Revival of Texas Basketball and Coach Rick Barnes, USA TODAY, Feb. 6, 2014, http://www.usatoday.com/stor y/sports/ncaab/big12/2014/02/06/university-of-texas-longhorns-basketball-coach-ri ck-barnes/5264209/ (internal quotation marks omitted). 51. Angela Lee Duckworth & Lauren Eskreis-Winkler, True Grit, ASS’N PSYCHOL. SCI. OBSERVER (April 2013), available at http://www.psychologica lscience.org/index.php/publications/observer/2013/april-13/true- grit.html (“Our research suggests that prodigious talent is no guarantee of grit.”). 52. Id. 53. Duckworth et al., Grit, supra note 43, at 1088. 54. BENJAMIN S. BLOOM, DEVELOPING TALENT IN YOUNG PEOPLE 533 (1985).
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reach a high level of attainment” and a “willingness to put in great amounts of time and effort.”55 In a study of 1,218 freshman “plebes” at the U.S. Military Academy at West Point, “[g]rit predicted completion of the rigorous summer training program better than any other predictor.”56 Specifically, the cadets’ scores on the “Grit Scale” developed by Professor Duckworth better predicted success in the program than even the Whole Candidate Score (WCS) developed by West Point to gauge applicants for admission.57 Grit is also a strong predictor of success in academia. In a study of students at an Ivy League university, the participant pool’s SAT scores averaged 1,415, “a score achieved by fewer than 4% of students who take the SAT.”58 But students who scored higher on the Grit Scale outperformed their less-gritty peers.59 The survey results showed that “[g]rit scores were associated with higher GPA’s” and “a relationship that was even stronger when SAT scores were held constant. . . .”60 The results demonstrated that grit was actually associated with lower SAT scores—“suggesting that among elite undergraduates, smarter students may be slightly less gritty than their peers.”61 Across six studies performed by Duckworth and her colleagues, grit accounted for “significant incremental variances in success outcomes over and beyond that explained by IQ, to which it was not positively related.”62 Duckworth’s observations about grit among undergraduates comport with my experience on the bench and in the classroom. The smartest law students are almost never the best trial lawyers. The top law students—recruited by large national law firms from the nation’s elite law schools—are generally among the most marginal trial lawyers. Although they make excellent motion-filing and
55. Id. at 544. 56. Duckworth et al., Grit, supra note 44, at 1095. 57. Id. at 1094–95. The WCS “is a weighted composite of high school rank; SAT score; Leadership Potential Score, which reflects participation in extracurricular activities; and Physical Aptitude Exam, a standardized physical exercise evaluation.” Id. at 1095. 58. Id. at 1093. 59. Id. 60. Id. 61. Id. 62. Id. at 1098.
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paper-pushing litigators (as well as great law professors), they are infrequently great trial lawyers. Great trial lawyers did not become great overnight.63 They are gritty individuals who often lost in their early careers and did not lose sight of the long-term goal of improving and learning from each loss. They were not easily deterred or discouraged by early setbacks and failures.64 They were willing to travel the long road and exert enormous effort to become great trial lawyers. For each of these individuals, the short-term goal was to win every trial, but the long- term goal was to become a great trial lawyer. As trial lawyer Rick Friedman explained:
In fact, many successful trial lawyers initially showed little or no talent for trying cases. Perhaps the most notable is Gerry Spence, who by his own account failed the Wyoming bar exam on his first attempt. After passing it on the second try, he proceeded to lose his first eight trials.65
63. This is true not only of great trial lawyers, but of many individuals who rise to the top. The 2013 U.S. Open Golf Champion, thirty-two-year-old Justin Rose, turned pro just after the 1988 U.S. Open and proceeded to miss the cut in his first twenty-one professional golf tournaments. Bob Harig, Justin Rose Closes Out 1st Major Win, ESPN GOLF (June 17, 2013, 8:40 AM), http://espn.go.com/ golf/usopen13/story/_/id/9393366/2013-us-open-justin-rose-wins-phil-mickelson- second-again. 64. On June 2, 2006, thirteen-year-old eighth grader Katharine Close, from Spring Lake, New Jersey, correctly spelled “ursprache” (a hypothetical parent language) and took home over $42,500 in cash and prizes for winning and beating 274 other finalists in the Scripps National Spelling Bee. Jill Capuzzo, For New Jersey 8th Grader, ‘Ursprache’ Means Fame, N.Y. TIMES, June 3, 2006, http://www.nytimes.com/2006/06/03/nyregion/03bee.html?_r=0. The best predictor of success in this spelling bee has been determined to be “deliberate practice,” that is, “the solitary study of word spellings and origins.” Angela Lee Duckworth, et al., Deliberate Practice Spells Success: Why Grittier Competitors Triumph at the National Spelling Bee, 2 SOC. PSYCHOL. & PERSONALITY SCI. 174, 174–75 (2011). Participants in the National Spelling Bee rated deliberate practice “more effortful and less enjoyable than alternative preparation practices.” Id. at 175. I strongly suspect that the same long, effortful, and deliberative practice is also necessary to become a great trial lawyer. 65. RICK FRIEDMAN, ON BECOMING A TRIAL LAWYER 39 (2008).
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Furthermore, Duckworth states that “[g]rit entails working strenuously toward challenges, maintaining effort and interest over years despite failure, adversity, and plateaus in progress.”66 She argues that an individual with grit “approaches achievement as a marathon; his or her advantage is stamina.”67 It takes persistence, a burning passion to become the best, an unparalleled work ethic, an insightful introspection to learn from your mistakes, and a desire to read and learn everything you can about the craft to become a great trial lawyer. This is grit.68
IV. VIRTUOSO CROSS-EXAMINER
“Cross-examination is the greatest legal engine ever invented for the discovery of truth.” —John Henry Wigmore69
Not all virtuoso cross-examiners are great trial lawyers, but every great trial lawyer is a virtuoso cross-examiner. Professor Jules Epstein has written that “[t]he mythic power of cross-examination remains enshrined in the American adjudicative process” and “is regarded as the sine qua non of the American trial system.”70 I agree. Many trials are won or lost on a successful or failed cross- examination of key witnesses. Most lawyers are mediocre cross- examiners, even on a good day. In my experience, trial lawyers’
66. Duckworth et al., Grit, supra note 44, at 1087–88. 67. Id. at 1088. 68. Lest one thinks grit is only relavant to becoming great in one’s respective profession, a recent study found a positive relationship between a high Grit Score as a predictor of happiness and life satisfaction. Kamleash Singh & Shalini Duggal Jha, Positive and Negative Affect, and Grit as a Predictor of Happiness and Life Satisfaction, 34 J. INDIAN ACAD. APPLIED PSYCHOL. (SPECIAL ISSUE) 40, 40–45 (2008). 69. California v. Green, 399 U.S. 149, 158 (1970) (quoting 5 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1367 3d ed. 1940). 70. Jules Epstein, Cross-Examination: Seemingly Ubiquitous, Purportedly Omnipotent, and “At Risk,” 14 WIDENER L. REV. 427, 427–48 (2009).
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poor cross-examinations can be attributed to a lack of experience and insufficient grit to work to improve one’s cross-examination skills.71 I agree with Wigmore that “[c]ross-examination is the greatest engine for ascertaining truth.”72 But I counter that cross- examination is less about a search for truth than it is a crucial vehicle for a lawyer to tell his client’s story, albeit in a very different way than in jury selection, an opening statement, a direct examination, or a closing argument. Most lawyers neither try enough cases nor think deeply and prepare diligently enough to become great cross- examiners. Cross-examination is often called an “art,” but this is a misconception. As Fred Metos explained, cross-examination is “a skill that can be learned with practice . . . [involving] a great deal of work and even more concentration.”73 So how does one become a great cross-examiner? Start by reading, studying, and thinking deeply about four cross-examination classics: Francis Wellman’s The Art of Cross-Examination (the first edition is more than a century old);74 Irving Younger’s “The Ten
71. Of course, not everyone agrees with me. Famed Miami criminal defense lawyer Roy Black blames Professor John Henry Wigmore for lawyers’ poor cross- examination skills: “Lawyers seem unable to master the art of cross-examination. I hold Wigmore responsible for this failure by boldly proclaiming that: ‘Cross examination is the greatest engine for ascertaining truth.’ Perhaps in some alternate universe, but not this one. The engine works better in theory than practice.” Roy Black, Irving Younger’s Ungodly Ten Commandments, BLACK’S LAW, A BLOG, (July 18, 2012), http://www.royblack.com/blog/irving-youngers-ungodly-ten- commandments/. Black also criticizes Irving Younger and his famous “Ten Commandments of Cross-Examination.” Id. While there is some truth in Black’s scathing attack on the Ten Commandments, I suggest that mediocre or novice cross-examiners still follow them unless they have a terrific reason for deviating, or until they develop the skill and judgment to know when it is better to deviate than to follow. 72. Green, 399 U.S. at 158 (quoting 5 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1367 (3d ed. 1940)). 73. G. Fred Metos, Cross-Examination: Methods and Preparations, UTAH B.J., Nov. 1990, at 11. 74. FRANCIS WELLMAN, THE ART OF CROSS-EXAMINATION (1903). The four editions of Wellman’s book generated so much buzz in the legal community that the Harvard Law Review reviewed the book three times. Book Note,17 HARV. L. REV. 433, 433–34 (1904); Emory R. Buckner, Book Note, 37 HARV. L. REV. 402 (1924); Book Note, 50 HARV. L. REV. 859 (1937).
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Commandments of Cross-Examination”;75 Larry Pozner’s Cross- Examination: Science and Techniques;76 and Terence MacCarthy’s treatise on cross-examination.77 These insightful works on cross- examination offer different perspectives with conflicting advice on solving the same cross-examination problems. Together, they provide a thorough theoretical and practical foundation of the goals of cross-examination. Trial lawyers who study them all can then
75. IRVING YOUNGER, THE ART OF CROSS-EXAMINATION (1976). His Ten Commandments are:
(I) Be brief; (II) Short questions, plain words; (III) Never ask anything but leading questions; (IV) Ask only questions to which you already know the answer; (V) Listen to the answer; (VI) Don’t argue with the witness; (VII) Don’t permit a witness on cross-examination to simply repeat his direct testimony; (VIII) Don’t let the witness explain; (IX) Avoid asking one question too many; (X) Save it for summation.
Id. at 21–32. For video of Irving’s lecture, see National Institute of Trial Advocacy, Irving Younger’s 10 Commandments of Cross-Examination, YOUTUBE (Jan. 10, 2013), http://www.youtube.com/watch?v=cFT5qEquiVZ. There are many modifications, refinements, and iterations of Younger’s Ten Commandments. See, e.g., Timothy A. Pratt, The Ten Commandments of Cross- examination, 61 FED’N DEF. & CORP. COUNS. QUARTERLY 178 (2011), available at http://www. thefederation.org/documents/V61N2_CoverToCover1.pdf (providing an update on Younger’s Ten Commandments by a partner at Shook, Hardy & Bacon, L.L.P. who went on to become general counsel of the Boston Scientific Corporation). Id. at 179. 76. LARRY POZNER & ROGER DODD, CROSS-EXAMINATION: SCIENCE AND TECHNIQUES (1993). Their now-famous “Chapter Method” of cross-examination presents the most illuminating and insightful technique for cross-examination I have ever read. Rick Friedman has offered this advice about Pozner and Dodd’s book on cross-examination in his own must-read book: “This is the definitive book on cross-examination. Any trial lawyer who has not read this book should be ashamed. Learn the techniques. When you have mastered them do not be afraid to cast them aside when the occasion warrants it.” FRIEDMAN, supra note 65, at 195. 77. TERENCE F. MACCARTHY, MACCARTHY ON CROSS-EXAMINATION (2007). Mr. MacCarthy retired from the Federal Defender Program of the Northern District of Illinois at the end of 2008, after serving that office for forty- two years. He is a nationally renowned expert on cross-examination and a much sought after CLE speaker. Press Release, United States Dist. Court, N. Dist. Ill. Terry MacCarthy Stepping Down as Top Federal Defender in Northern District of Illinois (Oct. 31, 2008), available at http://www.ilnd.uscourts.gov/home/_assets/_n ews/maccarthy%20-%2010-31-08.pdf.
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perfect whose strategy works and whose does not, given the precise situation presented for cross-examination.78 The leading question is to cross-examination what the leash is to walking a temperamental dog. Both are means of control: when you let a temperamental dog off the leash, nothing good ever happens. The same is true of the adverse witness. The use of a non- leading question is often a near fatality, unless you are a highly skilled cross-examiner, have a distinct purpose in mind for asking the non-leading question, and have instantaneously and correctly performed the risk–benefit analysis.79 Otherwise, you are just plain lucky. I can guarantee that you will not be lucky very often. Over the years, I have developed Bennett’s “Top Ten Sins of Cross-Examination”—the ten most frequent “mistakes” lawyers make in cross-examination. They are based on my own observations and jurors’ evaluations. The Top Ten Sins of Cross Examination are: (1) simply re-hashing the direct examination, (2) not having a specific purpose in mind for each question,
78. In Chapter 8, “Beware of Formulas,” of Rick Friedman’s ON BECOMING A TRIAL LAWYER, he writes:
So we read Irving Younger’s Ten Commandments of Cross-examination and try hard to follow his precepts to the letter. By calling them the “Ten Commandments,” Younger implied we must always follow them, and when we do, everything will be okay. Many lawyers have strictly followed these commandments through one bad cross-examination after another. This is not to say there isn’t great wisdom in Younger’s Ten Commandments or in many of the other principles advocated by those who study the trial process. It is to say that none of them are universal- that is, always controlling or true.
FRIEDMAN, supra note 65, at 71–72.
79. Timothy Pratt gives several examples of when it is better to ask a non- leading question. In cross-examining an opposing expert, where you already know the answer, it is fine to ask: “How long has it been since you have treated a patient?” or “Of the thousands of medical journals published around the world, tell the jury how many you have asked to publish the opinions you have expressed in this courtroom?” Presumably, you know the answer is none. Pratt, supra note 75, at 186.
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(3) not stopping while the going is still good, (4) failing to keep the questions simple, (5) beating up a witness who has not given you “permission” to do so, (6) impeaching a witness over a silly inconsistency, (7) flubbing the technique of impeachment, (8) using the “Mexican jumping bean”80 approach, (9) lack of pace, and (10) failing to have a graceful exit strategy when the cross- examination inevitably goes south.
(1) Simply re-hashing the direct—This occurs when the cross-examining attorney has nothing better to accomplish than to reinforce the direct examination of the witness. Do not do this! Rehashing the direct examination—which has already damaged your client—perversely promotes both primacy and recency. A client will be much better off by a lawyer who says “no questions” with a feigned confident smile (a great tool for every trial lawyer in its own right). Indeed, it has been said that “perhaps the most important issue with regard to cross-examination [is] whether or not to cross- examine the witness at all.”81 (2) Not having a specific purpose in mind for each question—Cross-examination requires great preparation and thought. If you do not have a crystal-clear purpose for a question, skip it, or risk doing more harm than good in the long run. (3) Not stopping while the going is still good—Over the last nineteen years, time and time again I have instant messaged my law clerk, seated to my left in the courtroom, during an otherwise
80. Mexican jumping beans are “the seed[s] of certain Mexican shrubs, especially those of the genus Sebastiania, of the spurge family (Euphorbiaceae), that contain larvae of a small olethreutid moth (Laspeyresia salitans). The movements of the larvae feeding on the pulp within the seed, which are intensified by warmth, give the seed the familiar jumping movement.” Mexican jumping bean, ENCYC. BRITANNICA ONLINE ACADEMIC EDITION, http://www.britannica.co m/EBchecked/topic/379073/Mexican-jumping-bean (last visited Sept. 21, 2013). 81. Gregory A. Hearing & Brian C. Ussery, Guidelines for an Effective Cross-Examination: The Science Behind the Art, 17 PRAC. LITIG. 7, 8 (2006); see also J. Alexander Tanford, Keeping Cross-Examination Under Control, 18 AM. J. TRIAL ADVOC. 245, 249 (1994) (“Too many lawyers automatically cross-examine every witness called by their opponent. No rule of trial practice requires this.”).
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excellent cross-examination to ask, will he stop now? The inevitable answer is no. It is almost impossible for lawyers to stop after making three, four, five, or more excellent and devastating points in rapid- fire succession. Most trial lawyers have an internal need to keep going and going until they run out of steam. At that point, the cross- examination has gone on for so long that those of us in the courtroom—the judge, the law clerk, and presumably the jury—are left thinking that there was something quite good about that cross- examination a few hours ago, despite having long since forgotten what it was. If you are fortunate enough to strike gold, then stop! Throw the legal pad away, sit down, and say “no further questions.” Most trial lawyers will not do this, though. Only the great ones stop. In my experience, this is because lawyers love the sound of their own voices, often to the detriment of their cross-examinations. They would be better served by setting aside their egos and sitting down. (4) Failing to keep the questions simple—Keeping the cross- examination questions simple—both in terms of the words used and the length of the question—is essential to controlling the witness. Equally important, for the same reasons, is limiting each leading question to one fact. Otherwise, “The complexity of a question can allow a witness wiggle room to deny a point the attorney wishes to affirm, or vice versa.”82 The consequences for ignoring this rule can be fatal. For example, a lawyer might ask, “Didn’t you run the red light because you dropped your lit cigarette on the floor of your car as you were turning off your car radio?” The defendant could honestly answer “no” to the entire question if the cigarette was not lit, if she dropped it on her seat and not the floor, or if she was turning the radio on and not off. (5) Beating up a witness who has not given you “permission” to do so—There is an old English proverb that says, “You can catch more flies with honey than with vinegar.”83 Jurors resent lawyers
81 82. Hearing & Ussery, supra note , at 10. 83. “You can catch more flies with honey than with vinegar,” DICTIONARY.COM, http://dictionary.reference.com/browse/you+can+catch+more+f lies+with+honey+than+with+vinegar (last visited Jun. 14, 2013) (citing THE AMERICAN HERITAGE NEW DICTIONARY OF CULTURAL LITERACY (3d ed. 2005)
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who bully witnesses unless the witness has given “permission” to be beaten up. Witnesses give this permission not literally, but rather when they are arrogant, nasty, obviously lying, extremely argumentative, or just plain obnoxious. Until then, roughing up or beating up the witness will backfire. When a witness has given the cross-examining attorney “permission” to beat him up, most jurors enjoy the entertainment value of aggressive cross-examination. They believe the witness is getting what he deserves. However, counsel should err on the side of caution in deciding whether the witness has given “permission” to ramp up contempt. Jurors, in their evaluations of trial lawyers before me, demonstrate a higher-than- expected threshold for witness “permission.” (6) Impeaching a witness over silly inconsistencies—Not all prior inconsistent statements by witnesses are created equal. This is critical to understand. Impeaching on irrelevant, minor, or fringe issues undermines, rather than advances, a cross-examination. It weakens the stronger aspects of the cross-examination and lessens an attorney’s personal credibility with the jurors. It is much better to impeach on one core issue than to do so ten times on minor inconsistencies. For example, if a witness testified in the deposition that she “hated” Mr. X, perhaps the attorney could technically impeach her trial testimony that she “despised” Mr. X. But such a ridiculously technical impeachment gains nothing and would make the attorney look like a silly nitpicker. “Not all prior inconsistent statements by witnesses are created equal” would make an excellent tattoo for trial lawyers. (7) Flubbing the technique of impeachment—Watching a botched impeachment effort is painful. The various techniques of impeaching a witness on cross-examination are fodder for a law review article of their own. Here are a few key points to keep in mind: In my district, all of the courtrooms are well equipped with modern technologies. Of course, not all trial lawyers are created technologically equal. For this reason, some impeachment is done the old-fashioned way, and some is done using high-tech, video- taped depositions, with or without scrolling text. The scrolling text feature can increase the cost of the deposition; however, it is usually
(“You can win people to your side more easily by gentle persuasion and flattery than by hostile confrontation.”)).
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well worth it. Nothing is more powerful than seeing and hearing a witness contradict the courtroom testimony he or she just gave, especially since some jurors are primarily visual learners while others are auditory learners. But—and this is a big but—nothing takes away from the impact and value of a high-tech impeachment more than a lawyer or legal assistant fumbling to find the video clip while everyone in the courtroom watches and waits. High-tech impeachment is worth its weight in gold, but only for those who are extremely proficient with it. The same is true of the old-fashioned way. If an attorney stumbles and makes everybody in the courtroom wait while he or a legal assistant scrambles to find a certain page of the witness’s deposition, the impact is lessened. And doing this repeatedly for minor and fringe inconsistencies often makes the impeachment effort worthless and counter-productive. In addition, some methods of using a written deposition to impeach a prior inconsistent statement are clearly better than others. I recently had a very good trial lawyer ask the witness to read both the questions and answers. The witness did so, but she read them so quickly that nobody in the courtroom could figure out where the question ended and the answer began, rendering the impeachment effort completely worthless. I have found that the most effective impeachment technique is for the lawyer to read the question asked in the deposition, and then have the witness read the answer they gave. There is something powerful in watching a witness effectively impeach him or herself. (8) Using the “Mexican jumping bean” approach—Years ago, the prevailing thought on cross-examination was that jumping all over the place with questions and confusing the witness yielded greater fruit. The problem with this “Mexican jumping bean” approach is that it confused the jurors as much as or more than it confused the witness. Larry Pozner’s “Chapter Method” of cross- examination takes the opposite approach, and its structure works extremely well.84
84. In Chapter 9 of CROSS-EXAMINATION: SCIENCE AND TECHNIQUES, “The Chapter Method of Cross-Examination,” Pozner and Dodd define their methodology of cross-examination as follows:
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(9) Lack of pace—Much of the success of cross-examination depends on the lawyer’s ability to keep a strong pace, pausing for effect rather than shuffling through notes or deposition pages to impeach.85 Jurors frequently comment negatively on lawyers who fumble for impeachment material or have trouble locating the allegedly impeaching statement in a prior exhibit or deposition. Gaps in the pace of cross-examination may lessen the effect of the good points you have made. (10) Failing to have a graceful exit strategy when the cross- examination inevitably goes south—Even the best-prepared cross- examinations can and do go south. That is why it is critical to have an exit strategy for every witness. These are a few questions—the only ones that I suggest be completely written out—that allow you a graceful exit from the cross-examination. These “fail-safe” questions must be a component of each witness’s cross-examination outline in your trial notebook. Why? Because effective cross- examination—which is often more theater than direct examination— requires a strong beginning and a strong ending every time. In my experience, the best cross-examiners are the top criminal defense lawyers and federal prosecutors. Trial lawyers who ply their craft in federal criminal cases do not have the crutch of taking depositions for impeachment purposes. Civil trial lawyers can learn from watching criminal defense lawyers and prosecutors, who are forced to be more resourceful and to think much faster on their feet. In this sphere, necessity truly breeds invention. In my opinion,
Why use the word “chapter”? It signifies that there is a structure, a beginning and an end to the cross-examination on each topic. Just like a book, there is a purpose to each chapter, and each chapter interlocks with the others. Cross-examination is not a sputtering jumble of thoughts. It is a controlled, pinpoint series of inquiries into selected topics. The chapter method suggests and, it is to be hoped, demands that the cross- examination be a planned and controlled series of questions designed to accomplish well-defined goals.
Pozner & Dodd, supra note 76, at 187.
85. See, e.g., FRIEDMAN, supra note 65, at 145 (“A purposeful pause is one in which you interrupt the pattern, cadence, or drone of your speech to gather the audience’s attention or to emphasize a point. It is one of the most powerful techniques in the courtroom, and one of the least used.”).
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depositions enable civil lawyers to become lazy. Take their depositions away, and few would have any effective cross- examinations. But since civil depositions are here to stay, it is worth noting that successful deposition skills in the conference room dictate how successful the cross-examination will be in the courtroom.86 The major mistake made in civil depositions is the failure to use leading questions that limit one fact per question. This critical failure, as described above, allows witnesses to successfully wiggle out of and escape impeachment at trial. Although the first part of a civil deposition is often a fishing expedition for potentially impeaching material, a skilled trial lawyer will later elicit one fact per question to lock in that impeachment material. So what can lawyers do to improve upon their cross- examination skills? First, pick one statement a day that you hear on television, radio, or at a social event. Practice aloud cross-examining the person making the statement. Second, read trial transcripts from any case and, after reading the direct examination, think through how the witness could be attacked on cross-examination. Then read the cross. Examine what the lawyer did well and how the cross could have been done better. Cross-examination requires practice, practice, and more practice—and even more preparation.
V. PREPARATION
“In all things success depends on previous preparation, and without such previous preparation there is sure to be failure.” —Confucius87
86. For an excellent discussion of the interdependence between deposition skills and cross-examination skills, see Gary S. Gildin, Cross-Examination at Trial: Strategies for the Deposition, 35 AM. J. TRIAL ADVOC. 471, 511 (2012) (arguing that a successful deposition sets the stage for a successful cross- examination). 87. Confucius, The Doctrine of the Mean, THE CHINESE CLASSICS 136 (James Legge trans., 1887).
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Just like Confucius, federal trial court judges place great value on the level of preparation by the lawyers appearing before them. In an informal, non-scientific e-mail poll of trial court judges in the Eighth Circuit, I asked respondents to list the three most important qualities or attributes of great trial lawyers.88 Eighteen of thirty-three judges responded that “preparation” was either first or second in importance.89 One judge said “slavish preparation.”90 I agree. While intense preparation alone does not make one a great trial lawyer, you cannot be one without it. Lawyers should dedicate a section in their trial notebooks for developing the case’s narrative and themes. Moreover, they should be thinking about and developing this section from the first client interview. I firmly believe that plaintiffs’ lawyers should draft the jury instructions on the elements of any potential claims and begin developing the case narrative and themes before accepting the case and executing the written retention agreement. Civil defense lawyers should do the same shortly after being retained. When I was in private practice, I was always shocked when I received a call from a fellow lawyer asking if I had a set of jury instructions that he or she could use. I freely shared my work product and always inquired as to the date of the upcoming trial. A frequent response was “next week.” How can a lawyer accept a case, go through discovery, motion practice, and trial preparation and not know exactly what he needs to prove in terms of claims or defenses? Lack of preparation is near the top of the list of jurors’ frequent negative comments about lawyers. It is also at the top of my list. Lack of preparation also manifests itself in lack of organization. Jurors and judges do not like lawyers that have to search and fumble for exhibits or notes. This is true both for lawyers who use high-tech exhibits and those who rely upon stacks of files in banker boxes. Jurors value their time too, and lack of organization creates juror resentment and wastes jurors’ and judges’ time.
88. E-mail from author to trial court judges on the Eight Circuit (April 2013) (on file with author). The precise question I asked in April 2013 was “What three qualities or attributes do you think separate the very best trial lawyers from the rest?” Id. 89. Id. 90. Id.
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Preparation means thinking of every detail, especially in communicating with juries. Lawyers who are oblivious to the needs and attention spans of jurors are doomed to failure. It makes no sense to have exhibits blown up on a board that jurors cannot read, nor does it behoove lawyers to show exhibits electronically in a font size too small for anyone to decipher. After a decade in a high-tech courtroom, I still encounter lawyers who display a tilted document on the document camera, forcing jurors to crane their necks to read it. Others fail to enlarge the document enough for the jurors to see the relevant language. In my courtroom, I have a zoom feature installed on my control panel so that I can enlarge documents when the lawyers fail to do so.91 On many occasions, I have called lawyers up to side-bar to point out that the jurors’ glazed looks are due to their endlessly repetitive and mostly pointless direct examinations. I ask the lawyer to look at the jury when resuming the direct examination and, if the jurors appear bored out of their minds, I encourage him or her to wrap it up. Once, a lawyer responded that he was taught to never look at the jury, so he did not think he could follow my suggestion. Sometimes a lawyer cannot be saved from himself. A major preparation attribute that separates great trial lawyers from lesser advocates is the ability to streamline their cases. Highly effective trial lawyers jettison redundant witnesses, unnecessary exhibits, repetitive questions, and causes of action that detract from the principal theory of recovery. All of this is critical to success at trial. Of course, it also takes a significant amount of judgment and courage—two related attributes of all great trial lawyers. A team of alleged trial lawyers from a large national law firm recently brought several-thousand exhibits to a final pre-trial conference in my chambers. But the case was only complicated in their collective minds. When asked how many of the exhibits were important enough to mention in their closing arguments, they said less than fifteen, after some fumbling responses and further prodding. The team dramatically trimmed its exhibit list.
91. I have even had lawyers exclaim: “Wow that’s neat—it even does it automatically.” Right.
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This is not to say that only exhibits mentioned in closing arguments need be offered at trial. However, it is not a bad general rule of thumb. Great trial lawyers understand that less is almost always more. Indeed, wasting jurors’ time with repetitive questions and unnecessary exhibits tops the list of jurors’ criticisms of trial lawyers.
VI. UNFAILING COURTESY
“Life is not so short, but that there is always time enough for courtesy.” —Ralph Waldo Emerson92
There is a large public misperception that the greatest trial lawyers are those that employ “Rambo” trial tactics. “Rambo” lawyering93 is derived from the fictional John Rambo character made famous by Sylvester Stallone in a series of movies.94 Rambo was a fictional Green Beret—a one-man-army killing machine. Professor Perrin describes the Rambo lawyer:
The quintessential Rambo lawyer is one who terrorizes, intimidates, and obfuscates his way to victory in pursuit of the client’s objectives, just as the Sylvester Stallone character laid waste to anything and everything in his way, killing and terrorizing the masses, in his effort to achieve vindication.95
92. RALPH WALDO EMERSON, LETTERS AND SOCIAL AIMS 85 (1886). 93. Unfortunately, the phrase “Rambo lawyer” now appears in the venerable Black’s Law Dictionary. See Rambo lawyer, BLACK’S LAW DICTIONARY 1373 (9th ed. 2009) (“Slang. A lawyer, esp. a litigator, who uses aggressive, unethical, or illegal tactics in representing a client and who lacks courtesy and professionalism in dealing with other lawyers. — Often shortened to Rambo.”) (emphasis removed). 94. There are four films in the Rambo series. FIRST BLOOD (Anabasis N.V. & Elcajo Productions 1982); RAMBO: FIRST BLOOD PART II (Anabasis N.V. 1985); RAMBO III (Carolco Pictures 1988); RAMBO (Lionsgate et al. 2008) (the full series of movies). 95. L. Timothy Perrin, Lawyer as Peacemaker: A Christian Response to Rambo Litigation, 32 PEPP. L. REV. 519, 522 (2005) (footnotes omitted).
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While I have encountered Rambo lawyering both as a practicing lawyer and as a judge, the vast majority of lawyers who have appeared before me in my twenty-four years on the bench are highly professional advocates. The best trial lawyers always are. They are as courteous to the courtroom deputy, court security officers, clerk’s office staff, and my chambers’ staff as they are to witnesses, opposing counsel, jurors, and judges. Tough, zealous, and successful trial lawyers do their best not to personalize issues, “win at all costs,” or do anything to sully their most important currency: a reputation for civility, candor, courtesy, and integrity. These lawyers understand that no legal or factual issue and no case is worth spoiling the reputation that they have worked to create and maintain. In a 1928 speech at Marquette University Law School, the Honorable Burr W. Jones, a lawyer and former member of the U.S. House of Representatives, said:
It is the popular conception, perhaps the true one, that the able and successful trial lawyer must be a fighter; that his life is one of battle and contention. I have known lawyers who seemed to act upon the theory that legal warfare is inconsistent with courtesy and gentlemanly manners in the court room and I have seen them fail of the high success which might have been within their reach. It is true that a client may sometimes gloat over the abuse which his lawyer hurls at the adverse attorney or party. For a moment even a jury may enjoy the excitement caused by such wordy encounters. But as a rule, both jurors and judges think of the legal profession as a learned profession, and that this conception should not be a mere fiction. When the time comes for rendering the verdict or the judgment they have more respect for, and more confidence in the fairminded gentleman than for him who deals in epithets and abuse.96
96. Burr W. Jones, Courtesy and Friendship in the Practice of the Law, 13 MARQ. L. REV. 9, 10 (1928).
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This is equally true today. Jurors, in their evaluations of trial lawyers, almost always give the most favorable evaluations to the most courteous and professional lawyers. While television shows may inculcate an expectation of Rambo trial lawyers, real jurors are critical of them and seldom evaluate them as effective advocates. Rambo lawyers are too busy bullying to listen to other lawyers and witnesses—a shortcoming discussed in the next section.
VII. GREAT LISTENER
“When people talk, listen completely. Most people never listen.” —Ernest Hemingway97
Lawyers often fit Hemingway’s description of “most people”: they love to hear the sound of their self-perceived silver tongues, but they are notoriously poor listeners. Just ask any judge or jury. The source of the problem could be legal education, according to Professor Neil Hamilton, who explained that despite being “critically important for effectiveness in both law school and the practice of law . . . listening skills are among the least emphasized skills in legal education.”98 Kentucky lawyer Richard M. Rawdon, Jr. adds that while listening is not easy or natural for trial lawyers, they must learn to listen to be successful: “Listening develops knowledge. Knowledge grants power. With power, you can win.”99 Spence’s views on listening at trial support both Hamilton and Rawdon’s assessments:
If I were required to choose the single essential skill from the many that make up the art of argument, it would be the ability to listen. I know lawyers who
97. Malcolm Cowley, A Portrait of Mister Papa, LIFE MAGAZINE, Jan. 10, 1949, at 90 (quoting from a letter of advice from Ernest Hemingway to a young writer). 98. Neil Hamilton, Effectiveness Requires Listening: How to Assess and Improve Listening Skills, 13 FLA. COASTAL L. REV. 145, 145 (2012). 99. Richard M. Rawdon, Jr., Listening: The Art of Advocacy, TRIAL, Jan. 2000, at 99.
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have never successfully cross-examined a witness, who have never understood where the judge was coming from, who can never ascertain what those around them are plainly saying to them. I know lawyers who can never understand the weakness of their opponent's case or the fears of the prosecutor; who, at last, can never understand the issues before them because they have never learned to listen. Listening is the ability to hear what people are saying, or not saying as distinguished from the words they enunciate.100
In my view, listening skills are incredibly underdeveloped in most lawyers I have observed in the courtroom. As Spence noted, poor listening skills have dire consequences for trial lawyers. For example, they almost always result in poor direct examination of witnesses. Unlike cross-examination, where the lawyer is the focus, direct examination should place the emphasis on the witness. The story or case narrative is told through the witness’s testimony, not through the lawyer’s questions. An attribute of all great trial lawyers is their ability to stay out of the way of their witnesses, who are the ones telling the client’s story. This is impossible to accomplish without honing one’s listening skills. How many, when introduced to a new person, cannot remember that person’s name ten seconds later? That is because too many of us are so focused on what we will say and making a good impression that we do not even listen to the person’s name. The irony is, had we actually listened and repeated the person’s name in our response, we could have accomplished both goals. The same is true of the direct examination of virtually all witnesses by less-than-great trial lawyers. These lawyers commonly write out their direct questions in a script on a yellow legal pad.101
100. GERRY SPENCE, HOW TO ARGUE AND WIN EVERY TIME 67 (1995). 101. The Chicago-based mega-firm of Mayer, Brown, Rowe & Maw (now shortened to Mayer Brown) used 1,200 legal size, 12,000 letter-size, and 4,200 junior-size legal pads a year, as of 2005. Suzanne Snider, Old Yeller: The Illustrious History of the Yellow Legal Pad, LEGAL AFFAIRS, May/June 2005, avai
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At trial, they will go down their lists from question to question— paying little or no attention to the witnesses’ answers—hoping to get to the next question on the list without an objection. If these lawyers would listen more closely to a witness’s answer, they would be able to use the technique of “looping” to form the next question, rather than using the ones on their legal pads. Here is an example of looping in a defense lawyer’s direct examination of the human resources director who decided to terminate the plaintiff:
Q: Why did you decide to discharge Mrs. Smith? A: Because she violated the company absenteeism policy. Q. Please tell us what the company’s absenteeism policy included. A. If you missed three days in a month without calling in you are subject to termination. Q. How many days in July of last year did Mrs. Smith miss? A. Six. Q. Did she call in on any of the six? A. No, but she had called in sometimes on other occasions during 2012 when she missed work, but she would not always do so. Q. How often in 2012 did Mrs. Smith call in when she missed work?
Looping requires you to listen to the witness’s answer and form the next question based on that answer, much like you would in
lable at http://www.legalaffairs.org/issues/May-June-2005/scene_snider_mayjun0 5.msp. It would do lawyers and their clients a great favor by banning the ubiquitous legal pad from the courtroom. They are extremely inflexible because neither the actual pages nor the information on those pages can be easily reorganized to adjust to the ebb and flow of trials. To me, the legal pad is about as useful in trial as carbon paper or Wite-Out. Legal pads were invented in 1888, when a twenty-four-year-old paper mill worker, Thomas W. Holley, noticed the mill was wasting the paper scraps, known as “sortings,” and left the company to start his own paper pad business. Id. Holley eventually added the pad’s left hand margin 1.25 inches from the left edge, known as a “down line,” at the suggestion of a local judge so the judge could “comment on his own notes.” Id.
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an interview or a conversation with a friend in which you are trying to elicit information. Many times during oral questioning on an issue, lawyers in my court have demonstrated their poor listening skills by answering a question that I did not ask or by failing to answer the question that I actually posed. Listening carefully to the question asked—rather than focusing too soon on the response—will improve lawyers’ ability to try cases. Likewise, listening for an answer before asking the next question will also help lawyers be effective. Good listening is an acquired skill, and any lawyer can achieve it with a little gritty determination. To be sure, developing enhanced listening skills is important even if you are not a trial lawyer. For example, these skills are crucial to developing trusting relationships with clients, regardless of your practice area.102 Strong listening skills also help to enhance judgment—yet another trait that all great trial lawyers possess in abundance.
VIII. UNSURPASSED JUDGMENT
“Failure is not a single, cataclysmic event. We do not fail overnight . . . [F]ailure is nothing more than a few errors in judgment, repeated every day.” —Jim Rohn103
Not all trial lawyers with great judgment are great trial lawyers. But all great trial lawyers have great judgment. The most important exercise of great judgment by great trial lawyers is knowing when not to say something. Francis Bacon, Attorney General and Lord Chancellor of England, wrote that “[s]ilence is the
102. See DAVID H. MAISTER, ET AL., THE TRUSTED ADVISOR 86–87, 97–98 (2000) (discussing the importance of listening skills in developing client relationships). 103. Jim Rohn, The Formula for Success (and Failure), SUCCESS, http://www.success.com/article/the-formula-for-success-and-failure (last visited September 30, 2013).
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sleep that nourishes wisdom.”104 In every phase of a jury trial, the great trial lawyers know when to stay silent. In discovery, they do not take ridiculous positions or file unnecessary motions to compel. In jury selection, they do not personally embarrass or argue with potential jurors. On direct examination, they do not beat a question to death by asking it over and over again in slightly different ways. They have the confidence to know that the jurors got it the first (or maybe the second) time. Redundant questioning by lawyers has been the number one criticism by jurors in the jury evaluation forms over my entire judicial career. Jurors resent lawyers who waste their time with needless repetition. Great trial lawyers do not plead twenty-four affirmative defenses just because the word processor can spit them out in seconds. Great trial lawyers do not have six alternative objections in the pre-trial order to exhibits that are clearly admissible. Great trial lawyers do not file frivolous motions in limine in an attempt to exclude obviously admissible evidence. In jury or bench trials, great trial lawyers seldom object, even when they know the objection would be sustained. They know the evidence is not hurting their client’s case, and they have no need to show everyone how smart they are by reciting complex rules of evidence. Great trial lawyers do not want the jury or judge to perceive them as obstructionists.105 I think most state and federal trial court judges would agree with “Bennett’s Anomaly,” which posits that the better the lawyers and the greater their knowledge of the rules of evidence and their proper application, the fewer objections they make in jury trials. The best and most effective trial lawyers also strive to be extremely professional and are marked by unsurpassed civility and professionalism. As such, great trial lawyers do not fail to cite non- controlling, adverse authority, even though the rules of ethics only require the disclosure of adverse controlling authority.106 They know
104. FRANCIS BACON, THE PHILOSOPHICAL WORKS OF FRANCIS BACON 553 (John M. Robertson ed., 1905). Bacon was a noted scientist, statesman, orator, and author. 105. Admittedly, sometimes the strategy in a criminal case is a necessary exception to this rule. 106. I recently wrote an opinion on this very subject:
While Abbott’s failure to cite a contrary, but non-controlling decision did not violate any ethical obligation, ethical obligations establish only the
124 Winter 2013] EIGHT TRAITS OF GREAT TRIAL LAWYERS 39
they will be viewed in higher esteem by the judge for citing and distinguishing non-controlling adverse authority. As a practical matter, the failure to do so sends a message to the judge that the lawyer thinks neither opposing counsel nor the judge is industrious enough to find the adverse authority. This is not a good message to send. Great trial lawyers understand that the state ethics codes and rules merely set the minimum floor.107 No great trial lawyer wants to be known as a minimally ethical lawyer. Over the years, I have observed other common judgment errors: (1) failing to ask questions in jury selection that go to the core issues of the case; (2) failing to bring out the weaknesses of the client’s case before the other side does;
barest minimum floor for attorney conduct. What attorney would want to be known as a minimally ethical lawyer rather than a highly professional one? Where the pool of decisions considering the same experts and methods is so limited, it is inconceivable to me that reasonably conscientious and highly professional counsel would not cite contrary authority, then meet it head on and attempt to distinguish it, not simply hope neither the opposing party nor the court would notice it—a vain hope, here, where the plaintiffs in Burks were represented by the same attorneys who represent the Conservator, and Abbott was represented by the same attorneys who represent Abbott here. Defense counsels’ lack of candor is troubling. Hide and seek litigation strategy seldom works and did not work here. As a result, I will find it more difficult to rely on the trustworthiness of defense counsel—a trial lawyer’s most important asset. This is not an auspicious beginning for counsel before a judge newly assigned to the case.
Sec. Nat’l Bank of Sioux City, Iowa v. Abbott Labs., No. C 11-4017-MWB, 2013 WL 2420841, at *9 n.7 (N.D. Iowa 2013) (emphasis removed).
107. The Model Rules of Professional Conduct “prescribe minimum standards for conduct, the violation of which will, and should, often lead to discipline. On the other hand, professionalism should make a lawyer feel compelled to do more than the minimum required just to avoid being disciplined.” Mike Hoeflich & J. Nick Badgerow, The Regulation of Courtesy: Does Kansas Need a Code of Professionalism?, 60 U. KAN. L. REV. 413, 419 (2011) (footnotes omitted).
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(3) leading on direct and failing to be facile in asking non- leading questions; (4) failing to begin and end the client’s case with strong, virtually unimpeachable evidence; (5) being argumentative with witnesses, opposing counsel, or the trial judge; (6) presenting too much cumulative evidence; (7) failing to take clues from observing the jurors that they are bored; (8) fumbling for exhibits and other time-wasting habits; (9) being blind to the strengths of the opposing parties’ case; and (10) being too tied to written-out questions and notes for jury selection, opening statements, direct and cross- examinations, and closing arguments.
The final judgement error is well illustrated by a trial in my courtroom from several years ago. An expert witness had just been sworn in, and the lawyer asked the first question on his yellow pad: “Good morning, Dr. So-and-So, I am the lawyer for the plaintiff. . . .” Unfortunately for this plaintiffs’ lawyer, we had taken the witness out of order and it was 2:45 in the afternoon. Even the jurors laughed at this lawyer who was so tied to his legal pad. Finally, the most common and most critical judgment error is not simplifying and shortening the trial presentation. As Albert Einstein noted, “Everything should be as simple as possible, but not simpler.”108 In almost all jury trials, less is truly more. All great trial lawyers understand this. They also understand that one of the major reasons judges and jurors both like, admire, and are persuaded by these lawyers is that they bring a heightened measure of reasonableness to the courtroom.
108. THE ULTIMATE QUOTABLE EINSTEIN 384–85 (Alice Calaprice ed., 2011). The quotation is commonly attributed to Einstein, but the actual, original source quotation is “a bit” different.
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IX. REASONABLENESS
“I tried being reasonable—I didn’t like it.” —Clint Eastwood109
“Dirty” Harry Callahan, played by iconic actor Clint Eastwood, is a character from a series of movies in the ’70s and ’80s. He was not a model of reasonableness. In the 1983 film, Sudden Impact, Dirty Harry corners a bank robber after killing his two accomplices. When the bank robber grabs a fleeing waitress and points his gun at her, Dirty Harry aims his .44 Magnum at the robber’s head and utters one of his more famous lines: “Go ahead. Make my day.” If Dirty Harry had been a trial lawyer rather than a police inspector, I expect he would have taken Rambo lawyering tactics to new and unimaginable heights. Inexperienced and less-than-great trial lawyers often conflate zealousness with unreasonableness (most likely driven by their personal insecurities). Great trial lawyers pride themselves on being both zealous and reasonable. Unlike their lesser adversaries, they do not see reasonableness as a sign of weakness, but instead as one of strength. Reasonableness in the pre-trial setting takes many forms: selecting appropriate causes of actions and defenses to plead; meeting early with opposing counsel to see if issues can be voluntarily narrowed and determine the truly contested issues; discussing (sensibly) how and when to conduct discovery; agreeing on times and places for depositions; conferring with the other side in good faith before filing discovery motions; being willing to make reasonable compromises on discovery without court intervention; opposing only unreasonable requests for extensions of time; and refraining from personal attacks on opposing counsel and their clients in briefing.
109. Eric Wiland, Williams on Thick Ethical Concepts and Reasons for Action, in THICK CONCEPTS 213 (Simon Kirchin ed., 2013) (attributing the quote to Dirty Harry); see also CONSERVATIVE WIT: A DICTIONARY OF CONSERVATIVE POLITICAL HUMOR 56 (Robert Golla ed., 2012) (collecting quotations on conservative political humor).
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In trial, reasonable trial lawyers know not to waste the time and resources of the judge and jury. When the inevitable unexpected problems arise, unreasonable lawyers are the first to create additional obstacles to resolution, even for easy-to-resolve problems. Great trial lawyers are quick to suggest reasonable solutions to problems that arise in trial—the rest, including “litigators,” often create them and whine about solutions. In contrast, reasonable lawyers are quick to suggest workable solutions, no matter how difficult the problem. For example, scheduling experts and other out-of-state witnesses can be daunting for attorneys. The less skilled the opposing counsel, the more likely they are to complain if the other side needs to take a witness out of order (i.e. during the opposing party’s case), in order to accommodate the witness.110 Another example comes from a high-stakes federal death penalty prosecution in my courtroom. I was concerned that the government would unfairly load up on victim impact testimony during the penalty phase, given the staggering amount of potentially admissible victim impact testimony. Fortunately, the Assistant U.S. Attorney prosecuting the case was an extraordinarily zealous and talented trial lawyer. He was impeccably reasonable and pared down his victim impact testimony, obtained a unanimous death verdict, and avoided the risk of a reversal on that issue. A lesser trial lawyer would likely not have avoided this potential pitfall. Thus, unlike Dirty Harry, great trial lawyers pride themselves on reasonableness, which contributes to their zealousness.
X. CONCLUSION
Nothing in this world can take the place of persistence. Talent will not; nothing is more common than unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education will not; the world is full of educated derelicts. Persistence and determination alone are omnipotent.
110. This procedure includes a proper explanation by the judge to the jury.
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The slogan “press on” has solved and always will solve the problems of the human race.111
So you want to be a great trial lawyer? It is critically important to remember they come in all shapes, sizes, genders, ages, and colors, with or without disabilities. Some have great natural talent, but most do not. A few went to top-ranked law schools and did very well; many, many more did not. All it takes to be a great trial lawyer is striving to be a gritty raconteur with unsurpassed listening skills and judgment, unfailing commitment to preparation, reasonableness and courtesy, and excellent cross-examination skills. Of course, if you are a litigator, you also must overcome your fear of going to trial. Let the immortal words of Rosa Parks, one of the grittiest individuals in American history, be your inspiration: “I have learned over the years that when one’s mind is made up, this diminishes fear; knowing what must be done does away with fear.”112 So make up your mind to go try cases. That is the only way to become a great trial lawyer.
111. THE SPEAKER’S QUOTE BOOK: OVER 5,000 ILLUSTRATIONS AND QUOTATIONS FOR ALL 382 (Roy B. Zuck ed., 2009). This quotation is from a person who never went to law school and failed his initial entrance exam to Amherst College. However, he developed a reputation as a hard-working and diligent attorney in Hampshire County, Massachusetts, where he was admitted to the bar after apprenticing with a local law firm because he could not afford law school tuition. This small-town country lawyer should know about persistence. His name was John Calvin Coolidge, Jr., and he went on to become the thirtieth President of the United States. DAVID GREENBERG, CALVIN COOLIDGE, THE AMERICAN PRESIDENTS SERIES (Times Books, 1st ed. 2006). 112. ROSA PARKS & GREGORY J. REED, QUIET STRENGTH: THE FAITH, THE HOPE, AND THE HEART OF A WOMAN WHO CHANGED A NATION 17 (1994). Parks is “nationally recognized as the mother of the modern-day civil rights movement in America . . . [who] refused to surrender her seat to a white male passenger on a Montgomery, Alabama, bus on December 1, 1955 . . . .” Id. at 11. Parks “set in motion a chain of events that were felt throughout the United States. Her quiet, courageous act changed America and redirected the course of history.” Id.
129 Section 1
D.
Issues with Wind Energy in Iowa
Thomas S. Reavely, Des Moines
130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 Section 1
E.
Panel on Jury Trials in the Age of COVID
Jennifer E. Rinden, Cedar Rapids Holly M. Logan, Des Moines Karla J. Shea, Waterloo
163 2/11/21
RESUMING JURY TRIALS DURING THE COVID- RESUMING JURY TRIALS DURING COVID-19
19 PANDEMIC ¡ Jumpstart Jury Trials Task Force ¡ Iowa Supreme Court Orders ¡ Pilot Jury Trial Reports ¡ Scott County ¡ Muscatine County ¡ Practical Considerations Holly Logan [email protected] ¡ North Lee County Civil Jury Trial (tried Nov. 3-10, 2020) Jennifer Rinden [email protected] Karla Shea [email protected] ¡ “Serving Safely” public service announcement
1 2
JUMPSTART JURY TRIALS TASK FORCE RECOMMENDATIONS
¡ Communicating with the public about safety measures and the importance of jury service ¡ Preparing the courthouse ¡ Screening and personal protective equipment ¡ Pretrial preparations ¡ Juror summoning and check-in
¡ Jury selection ¡ Conducting jury trials ¡ Deliberations ¡ Pilot trials
3 4
SUPREME COURT ORDERS PILOT JURY TRIAL REPORTS
¡ July 9, 2020 Order—Resuming In-Person Court Services ¡ July 20, 2020 Order—Resuming Jury Trials ¡ Muscatine County Pilot Jury Trial Report ¡ Scott County Jury Trial Report
¡ https://www.iowacourts.gov/iowa-courts/covid-19-information-and-updates/
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164 1 2/11/21
JURY INFORMATION—MUSCATINE COUNTY JURY INFORMATION—SCOTT COUNTY
¡ 310 jury summons—increase of 25% ¡ 600 jury summons—increase of 50% ¡ 138 asked to report ¡ 155 asked to report ¡ 76 jurors available and 66 reported for jury duty ¡ 109 available and 65 reported for jury duty ¡ None excused for COVID-related concerns ¡ None excused for COVID-related concerns
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JURY CHECK-IN AND VOIR DIRE COUNSEL TABLE AND JURY LAYOUT
¡ Muscatine—Central Middle School Auditorium ¡ Scott--Rivercenter
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PRACTICAL CONSIDERATIONS MITCHELL COUNTY TRIAL
§ October 7 – 10, 2020 ¡ Remote voir dire § Health Department Pre-screened at front door of Courthouse § ¡ Pre-screening vs. questionnaires Large lobby for jury selection, remainder in courtroom § Pool was 67 ¡ PPE for jurors during jury selection process § No requested Covid dismissals ¡ Increasing number of alternates? § Exhibits on large screen after admitted § Started with shields only for speakers, court reporter requested switch to masks § Jury room large enough for social distancing
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165 2 2/11/21
THOUGHTS ON MITCHELL COUNTY TRIAL MADISON COUNTY CIVIL JURY TRIAL – OCTOBER 2020
¡ Use pre-trial conference wisely. § Need monitor for witness only for yet to be admitted exhibits and depositions, ¡ Technology set-up ¡ Size of venire/panel (larger) interrogatories for cross ¡ Flexibility re: trial location. § Get a Covid test and encourage clients to test prior to trial? ¡ Some courtrooms not large enough § Other counties don’t have the same facilities in the courthouse ¡ Alternate counties or locations (e.g., fair grounds) § Covid trials WILL take longer – Expedited? ¡ Masks v. Face Shields. ¡ Body language/non-verbals – witness, client, attorney, jurors ¡ More jury members may be dismissed due to hearing issues ¡ Jurors increasingly impatient.
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NORTH LEE COUNTY CIVIL JURY TRIAL, NOVEMBER 3, 2020 NORTH LEE COUNTY CIVIL JURY TRIAL
¡ Four panels of ten jurors (1 hour and 15 minutes for both Plaintiff & Defendant) scheduled on day one of trial ¡ Face shields provided for jurors during voir dire ¡ Attorneys and witnesses wore face shields while speaking ¡ Witness stand was relocated to the jury box ¡ Jurors reported directly to the courtroom (not the jury room) and deliberated in the courtroom
15 16
JURY PANEL SEATING LESSONS LEARNED—A WISH LIST
¡ Microphones ¡ Large TV or projector screen—able to be seen by everyone ¡ Loud and clear voices ¡ Flexibility, patience, and cooperation with co-counsel and the court
17 18
166 3 2/11/21
JURY TRIAL POSTPONEMENT (NOVEMBER 10, 2020) SERVING SAFELY
¡ Supreme Court noted the “current high rate of ¡ Public service announcement released January 27, 2021 COVID-19 positive tests in ¡ Provides information regarding jury service during COVID-19 the state” ¡ Justice Matthew McDermott: ¡ Continued all jury trials ¡ “We’ve continued to monitor the situation closely as we that had not commenced move to resume jury trials throughout the state. To our knowledge there were no infections connected with the between November 16, trials that took place last fall and we believe that is a 2020 and February 1, 2021. testament to the safeguards we have in place.”
19 20
167 4 Section 1
F.
State of the Iowa Supreme Court
Chief Justice Susan Christensen, Iowa Supreme Court
168 Section 2
A.
Ethical Tips for Practitioners
Justice Matthew McDermott, Iowa Supreme Court
169 PROFESSIONAL and ETHICAL TIPS FOR LAWYERS
Iowa Academy of Trial Lawyers February 25, 2021
Matthew McDermott Iowa Supreme Court [email protected]
Selections from Chapter 33, Standards for Professional Conduct
Rule 33.1 Preamble.
o 33.1(1) A lawyer’s conduct should be characterized at all times by personal courtesy and professional integrity in the fullest sense of those terms. In fulfilling our duty to represent a client vigorously as lawyers, we will be mindful of our obligations to the administration of justice, which is a truth-seeking process designed to resolve human and societal problems in a rational, peaceful and efficient manner.
o 33.1(2) A judge’s conduct should be characterized at all times by courtesy and patience toward all participants. As judges we owe to all participants in a legal proceeding respect, diligence, punctuality and protection against unjust and improper criticism or attack.
o 33.1(3) Conduct that may be characterized as uncivil, abrasive, abusive, hostile or obstructive impedes the fundamental goal of resolving disputes rationally, peacefully and efficiently. Such conduct tends to delay and often to deny justice.
o 33.1(4) The following standards are designed to encourage us, judges and lawyers, to meet our obligations to each other, to litigants and to the system of justice, and thereby achieve the twin goals of civility and professionalism, both of which are hallmarks of a learned profession dedicated to public service.
o 33.1(5) We expect judges and lawyers will make a mutual and firm commitment to these standards. Voluntary adherence is expected as part of a commitment by all participants to improve the administration of justice throughout the state.
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170 o 33.1(6) Lawyers are alerted to the fact that, while the standards refer generally to matters which are in court, the same standards also apply to professional conduct in all phases of the practice of law.
o 33.1(7) These standards shall not be used as a basis for litigation or for sanctions or penalties. Nothing in these standards supersedes or detracts from existing disciplinary codes or alters existing standards of conduct against which lawyer negligence may be determined.
Rule 33.2 Lawyers’ duties to other counsel.
o 33.2(1) We will practice our profession with a continuing awareness that our role is to advance the legitimate interests of our clients. In our dealings with others we will not reflect the ill feelings of our clients. We will treat all other counsel, parties and witnesses in a civil and courteous manner, not only in court, but also in all other written and oral communications.
o 33.2(2) We will not, even when called upon by a client to do so, abuse or indulge in offensive conduct directed to other counsel, parties or witnesses. We will abstain from disparaging remarks or acrimony toward other counsel, parties or witnesses. We will treat adverse witnesses and parties with fair consideration.
o 33.2(3) We will not encourage or knowingly authorize any person under our control to engage in conduct that would be improper if we were to engage in such conduct.
o 33.2(4) We will not, absent good cause, attribute bad motives or improper conduct to other counsel or bring the profession into disrepute by unfounded accusations of impropriety.
o 33.2(5) We will not seek court sanctions without first conducting a reasonable investigation and unless fully justified by the circumstances and necessary to protect our client’s lawful interests.
o 33.2(6) We will cooperate in the transfer of files, wills, and other documents to another attorney when requested to do so, orally or in writing, by a person authorized to make that request. We will provide reasonable assistance in organizing and explaining items transferred, recognizing that such cooperation assists the client in receiving competent legal representation.
o 33.2(7) We will adhere to all express promises and to agreements with other counsel, whether oral or in writing, and will adhere in
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171 good faith to all agreements implied by the circumstances or local customs. o 33.2(8) We will promptly acknowledge the receipt of contacts from other attorneys, whether those contacts are by telephone or in writing, and we will make an appropriate response to the subject matter of the contact as soon as reasonably possible. o 33.2(9) When we reach an oral understanding on a proposed agreement or a stipulation and decide to commit it to writing, the drafter will endeavor in good faith to state the oral understanding accurately and completely. The drafter will provide the opportunity for review of the writing to other counsel. As drafts are exchanged between or among counsel, changes from prior drafts will be identified in the draft or otherwise explicitly brought to the attention of other counsel. We will not include in a draft matters to which there has been no agreement without explicitly advising other counsel in writing of the addition. o 33.2(10) We will endeavor to confer early with other counsel to assess settlement possibilities. We will not falsely hold out the possibility of settlement as a means to adjourn discovery or to delay trial. o 33.2(11) In civil actions, we will stipulate to relevant matters if they are undisputed and if no good faith advocacy basis exists for not stipulating. o 33.2(12) We will not use any form of discovery or discovery scheduling as a means of harassment. o 33.2(13) We will make good faith efforts to resolve by agreement our objections to matters contained in pleadings and discovery requests and objections. o 33.2(14) We will not time the filing or service of motions or pleadings in any way that unfairly limits another party’s opportunity to respond. o 33.2(15) We will not request an extension of time solely for the purpose of unjustified delay or to obtain a tactical advantage. o 33.2(16) We will consult other counsel regarding scheduling matters in a good faith effort to avoid scheduling conflicts.
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172 o 33.2(17) We will endeavor to accommodate previously scheduled dates for hearings, depositions, meetings, conferences, vacations, seminars or other functions that produce good faith calendar conflicts on the part of other counsel. If we have been given an accommodation because of a calendar conflict, we will notify those who have accommodated us as soon as the conflict has been removed. o 33.2(18) We will notify other counsel and, if appropriate, the court or other persons, at the earliest possible time when hearings, depositions, meetings or conferences are to be canceled or postponed. Early notice avoids unnecessary travel and expense of counsel and may enable the court to use the previously reserved time for other matters. o 33.2(19) We will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided our clients’ legitimate rights will not be materially or adversely affected. o 33.2(20) We will not cause any default or dismissal to be entered without first notifying opposing counsel, when we know the opposing counsel’s identity. o 33.2(21) We will take depositions only when actually needed to ascertain facts or information or to perpetuate testimony. We will not take depositions for the purposes of harassment or to increase litigation expenses. o 33.2(22) We will not engage in any conduct during a deposition that would not be appropriate in the presence of a judge. o 33.2(23) We will not obstruct questioning during a deposition or object to deposition questions unless necessary under the applicable rules to preserve an objection or privilege for resolution by the court. o 33.2(24) During depositions we will ask only those questions we reasonably believe are necessary for the prosecution or defense of an action. o 33.2(25) We will carefully craft document production requests so they are limited to those documents we reasonably believe are necessary for the prosecution or defense of an action. We will not design production requests to place an undue burden or expense on a party.
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173 o 33.2(26) We will respond to document requests reasonably and not strain to interpret the request in an artificially restrictive manner to avoid disclosure of relevant and nonprivileged documents. We will not produce documents in a manner designed to hide or obscure the existence of particular documents.
o 33.2(27) We will carefully craft interrogatories so they are limited to those matters we reasonably believe are necessary for the prosecution or defense of an action, and we will not design them to place an undue burden or expense on a party.
o 33.2(28) We will respond to interrogatories reasonably and will not strain to interpret them in an artificially restrictive manner to avoid disclosure of relevant and nonprivileged information.
o 33.2(29) We will base our discovery objections on a good faith belief in their merit and will not object solely for the purpose of withholding or delaying the disclosure of relevant information.
o 33.2(30) When a draft order is to be prepared by counsel to reflect a court ruling, we will draft an order that accurately and completely reflects the court’s ruling. We will promptly prepare and submit a proposed order to other counsel and attempt to reconcile any differences before the draft order is presented to the court.
o 33.2(31) We will not ascribe a position to another counsel that counsel has not taken or otherwise seek to create an unjustified inference based on counsel’s statements or conduct.
o 33.2(32) Unless specifically permitted or invited by the court, we will not send copies of correspondence between counsel to the court.
Rule 33.3 Lawyers’ duties to the court.
o 33.3(1) We will speak and write civilly and respectfully in all communications with the court.
o 33.3(2) We will be punctual and prepared for all court appearances so that all hearings, conferences and trials may commence on time; if delayed, we will notify the court and counsel, if possible.
o 33.3(3) We will be considerate of the time constraints and pressures on the court and court staff inherent in their efforts to administer justice.
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174 o 33.3(4) We will not engage in any conduct that brings disorder or disruption to the courtroom. We will advise our clients and witnesses appearing in court of the proper conduct expected and required there and, to the best of our ability, prevent our clients and witnesses from creating disorder or disruption.
o 33.3(5) We will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities in any oral or written communication to the court.
o 33.3(6) We will not write letters to the court in connection with a pending action, unless invited or permitted by the court.
o 33.3(7) Before a date for hearing or trial is set or, if that is not feasible, immediately after such date has been set, we will attempt to verify the availability of necessary participants and witnesses so we can promptly notify the court of any likely problems.
o 33.3(8) We will act and speak civilly to court attendants, clerks, court reporters, secretaries and law clerks with an awareness that they too are an integral part of the judicial system.
Selected Rules of Professional Conduct – Chapter 32
PREAMBLE: ALAWYER’S RESPONSIBILITIES
[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.
[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others.
* * *
[4] In all professional functions a lawyer should be competent, prompt, and diligent. A lawyer should maintain communication with a client concerning
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175 the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Iowa Rules of Professional Conduct or other law.
[5] A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.
* * *
[8] A lawyer’s responsibilities as a representative of clients, an officer of the legal system, and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private.
[9] In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Iowa Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules. These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system.
Rule 32:1.1 COMPETENCE
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
Comment
* * *
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176 Maintaining Competence
[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.
Rule 32:1.4 COMMUNICATION
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in rule 32:1.0(e), is required by these rules;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Iowa Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Rule 32:1.6 CONFIDENTIALITY OF INFORMATION
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b) or required by paragraph (c).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests
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177 or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
(c) A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent imminent death or substantial bodily harm.
(d) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
Iowa Lawyers Assistance Program
Hugh Grady, Director Toll Free (800)-243-1533 (515) 277-3817 Cell (515)-360-1668 [email protected] Confidential assistance
9
178 Section 2
B.
Issues with Conflicting Civil Litigation and Criminal Charges
Christine Branstad, Des Moines
179 IAJ Seminar Outline: Civil Litigation and Criminal Charges
O.J., and Baldi, and Carter, Oh My: Litigating Crimes in Civil Court
I. Introduction a. The Parade of Horribles i. What Happens When a Criminal Case is Brought Before a Civil Damages Suit O.J. Simpson and Dr. Baldi cases
ii. What Can Happen when a Civil Damages Suit Comes Before a Criminal Case Jason Carter cases
b. Regardless of the order, when your client faces both civil and criminal liability, unique challenges arise
II. Civil Criminal Distinction
a. Most crimes have a civil corollary that allows for an award of tort damages
Iowa Code section 611.21 provides: “The right of civil remedy is not merged in a public offense and is not restricted for other violation of law, but may in all cases be enforced independently of and in addition to the punishment of the former.”
Iowa courts interpret section 611.21 to mean that a “violation of a criminal statute gives rise to a civil cause of action only if such an action appears, by express terms or clear implication, to have been intended by the legislature.” Davenport v. City of Corning, 742 N.W.2d 605, 2007 WL 3085797, at *7 (Iowa Ct. App. 2007) (citing Hall v. Montgomery Ward & Co., 252 N.W.2d 421, 423 (Iowa 1977)).
b. Civil tort cases seek monetary damages for acts that also qualify as crimes, which may or may not follow a criminal case
i. Criminal Restitution
Our legislature has enacted a comprehensive scheme for restitution in all criminal cases which result in a judgment of conviction, except simple misdemeanor traffic convictions. See generally Iowa Code ch. 910. This chapter requires the sentencing court to order offenders to make restitution for their criminal activities to the victims of the crime, and to the clerk of court. See Iowa Code § 910.2.
Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 1 of 23 180 Restitution for criminal activities, therefore, is broadly defined by statute to not only mean “payment of pecuniary damages to a victim” but also
fines, penalties, and surcharges, the contribution of funds to a local anticrime organization which provided assistance to law enforcement in an offender's case, the payment of crime victim compensation program reimbursements, ... court costs including ... court-appointed attorney's fees, or the expense of a public defender, and the performance of a public service by an offender in an amount set by the court when the offender cannot reasonably pay all or part of the court costs including ... court-appointed attorney's fees, or the expense of a public defender.
Id. § 910.1(4).
“Pecuniary damages” is defined by our legislature to mean
all damages to the extent not paid by an insurer, which a victim could recover against the offender in a civil action arising out of the same facts or event, except punitive damages and damages for pain, suffering, mental anguish, and loss of consortium.
Id. § 910.1(3). Pecuniary damages also include “damages for wrongful death and expenses incurred for psychiatric or psychological services or counseling or other counseling for the victim which became necessary as a direct result of the criminal activity.” Id. A victim is defined by statute to mean “a person who has suffered pecuniary damages as a result of the offender's activities.” Id. § 910.1(5).
Our legislature recently expanded the scope of restitution to require an offender convicted of a felony resulting in death to pay at least $150,000 in restitution to the victim's estate. Id. § 910.3B(1). This award is in addition to victim restitution for pecuniary damage under section 910.1(4). The statute provides:
In all criminal cases in which the offender is convicted of a felony in which the act or acts committed by the offender caused the death of another person, in addition to the amount determined to be payable and ordered to be paid to a victim for pecuniary damages, as defined under section 910.1, and determined under section 910.3, the court shall also order the offender to pay at least one hundred fifty thousand dollars in restitution to the victim's estate. The obligation to pay the additional amount shall not be dischargeable in any proceeding under the federal Bankruptcy Act. Payment of the additional amount shall have the same priority as payment of a victim's pecuniary damages under section 910.2, in the offender's plan for restitution. Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 2 of 23 181 Id.
The restitution award under section 910.3B does not impede or supersede the right to pursue additional damages in a civil action arising from the same facts. Id. § 910.3B(2). Evidence of the entry of a restitution award and the amount of the award is inadmissible in any subsequent civil action arising from the same set of facts. Id. On the other hand, an offender ordered to pay restitution under section 910.3B is precluded from denying the elements of the offense which resulted in the award in any subsequent civil action arising from the same facts or event. Id. § 910.3B(3). A restitution award under chapter 910 is also offset against any judgment in favor of a victim in any subsequent civil action arising from the same facts. Id. § 910.8 (1997).
State v. Izzolena, 609 N.W.2d 541, 545–46 (Iowa 2000).
Statutory Mandatory minimum restitution amounts, including those for murder, do not violate constitutional rights under the excess fines provision of the Iowa Constitution, article I, section 17 of the Iowa Constitution, even for juvenile defendants. State v. Richardson, 890 N.W.2d 609, 610–11 (Iowa 2017).
ii. Punitive damages are available in civil damages case either way, and are not limited by constitutional provisions
First, the Excessive Fines Clause does not apply to punitive damages in cases between private parties. Instead, the clause was intended to limit the steps a government may take against an individual in imposing excessive monetary sanctions. Second, the clause is implicated when government has exercised its power to extract payments as punishment for an offense, whether the underlying proceeding is civil or criminal. Thus, the term “fine” not only embraces those monetary sanctions traditionally imposed in a criminal case, but other sanctions which constitute punishment for an offense.
State v. Izzolena, 609 N.W.2d 541, 547 (Iowa 2000) (internal citations omitted).
iii. Civil Damages Cases
1. If civil damages case follows a criminal conviction, a civil plaintiff has simpler case, as facts in the criminal case are established beyond a reasonable doubt and are binding on subsequent civil matter
[The Iowa Supreme Court has] said that the amount of restitution ordered in a criminal prosecution is not limited by the parameters of the offense for
Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 3 of 23 182 which the defendant enters a guilty plea. Additionally, [the Court] ha[s] held that a validly entered and accepted guilty plea precludes a criminal defendant from relitigating essential elements of the criminal offense in a later civil case. [The Court] did not say in Winker, however, that the criminal restitution order precludes a victim from relitigating, in a later civil case, the amount of damages sustained by the victim as a result of the defendant's criminal conduct. Therefore, it was proper for Teggatz to offer into evidence in the civil case, Ringleb's criminal case file for purposes of establishing the elements of his civil action against Ringleb for money damages, but doing so did not preclude Teggatz from relitigating the issue of damages in the civil case.
Through enactment of Iowa Code section 910.8, the legislature has stated therein that an order requiring payment of restitution by a criminal defendant does “not limit or impair the rights of victims to sue and recover damages from the offender in a civil action.” (Emphasis added.) Iowa Code section 910.8 further states:
The institution of a restitution plan shall toll the applicable statute of limitations for a civil action arising out of the same facts or event for the period of time that the restitution plan is effective. However, any restitution payment by the offender to a victim shall be set off against any judgment in favor of the victim in a civil action arising out of the same facts or event.
Teggatz v. Ringleb, 610 N.W.2d 527, 529–30 (Iowa 2000) (internal citations omitted).
The rule is well established in Iowa that a validly entered and accepted guilty plea precludes a criminal defendant from relitigating essential elements of the criminal offense in a later civil case arising out of the same transaction or incident. We have allowed third parties to use a defendant's guilty plea against him in a civil action.
In Ideal Mutual, this court overturned precedent that held criminal guilty pleas lacked preclusive effect in subsequent civil litigation. We thoroughly analyzed the American Law Institute's Restatement (Second) of Judgments, the writings by Professor Allan Vestal, and developing caselaw in other jurisdictions. We concluded substantial support exists for the proposition that a guilty plea should be given preclusive effect against the accused. We held the executor of the deceased's estate could use the defendant's second-degree murder plea to establish tort liability in a subsequent civil action for wrongful death.
Employers Mut. Cas. Co. v. Van Haaften, 815 N.W.2d 17, 23 (Iowa 2012) (internal citations, quotations, and brackets omitted).
Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 4 of 23 183 This preclusive rule further applies in a number of different civil matters following criminal matters.
In its complaint, the Board invoked issue preclusion pursuant to Iowa Court Rule 35.7(3). When invoked by a party, the rule bars relitigating of an issue if: a. The issue has been resolved in a civil proceeding that resulted in a final judgment, or in a criminal proceeding that resulted in a finding of guilt, even if the Iowa Supreme Court Attorney Disciplinary Board was not a party to the prior proceeding. b. The burden of proof in the prior proceeding was greater than a mere preponderance of the evidence. c. The party seeking preclusive effect has given written notice to the opposing party, not less than ten days prior to the hearing, of the party's intention to invoke issue preclusion. Iowa Ct. R. 35.7(3). Wheeler pled guilty to knowingly making a false statement to a financial institution on a mortgage application, a class “B” felony. See 18 U.S.C. §§ 1014, 3559 (2006). Further, the Board gave written notice to Wheeler in its complaint that it would invoke issue preclusion under rule 35.7(3). Rule 35.7(3) prohibits Wheeler from relitigating the issue of his criminal conduct. Iowa Ct. R. 35.7(3). Accordingly, [the Iowa Supreme Court] f[ound] Wheeler knowingly misrepresented his financial status to the bank. Although Wheeler claims not to have read the mortgage applications, this claim is contrary to his guilty plea wherein he admits that he “knowingly” made a false statement or report. See 18 U.S.C. § 1014.
Iowa Supreme Court Attorney Disciplinary Bd. v. Wheeler, 824 N.W.2d 505, 510 (Iowa 2012).
2. If a civil damages case follows a criminal acquittal or dismissal, the plaintiff’s case is more complex, as there is no preclusive findings taken from the criminal case (O.J. and Baldi)
“However, the acquittal does not establish [a fact at issue in the criminal trial]. Because of the different standards of proof in criminal and civil proceedings, the acquittal has no preclusive effect in the present case.” Debower v. Cty. of Bremer, 788 N.W.2d 397, 2010 WL 2757112, at *10 n.7 (Iowa Ct. App. 2010).
Even pre-trial determinations in criminal cases are not preclusive on later civil cases when the criminal case ends in an acquittal or dismissal.
The first issue we must resolve is whether the district court's denial of Pardee's motion to suppress in the criminal case has preclusive effect in this case. We agree with the court of appeals' comprehensive discussion of Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 5 of 23 184 this issue, which concludes there is no preclusive effect. For present purposes we need to focus on issue preclusion—not claim preclusion. Whether evidence should be admitted or not is an issue, not a claim.
Issue preclusion does not apply here because Pardee was acquitted in the criminal case. Hence, the trial court's determination of the motion to suppress against Pardee was not necessary to the final judgment. See George v. D.W. Zinser Co., 762 N.W.2d 865, 868 (Iowa 2009) (stating for issue preclusion to apply, “the determination made of the issue in the prior action must have been necessary and essential to the resulting judgment”); Restatement (Second) of Judgments § 27 cmt. h, at 258 (Am. Law. Inst. 1982) (requiring that the prior determination be “essential to” the final judgment and noting that where the judgment is “not dependent” upon the determination, the determination does not have issue preclusive effect); cf. Property v. State, No. 06–11–00113–CV, 2012 WL 1940805, at *4 (Tex. Ct. App. May 22, 2012) (finding that the denial of a motion to suppress in a criminal case had collateral estoppel effect where “[t]he trial court's determination that the fruits of Cruson's search were not subject to suppression was necessary to the prior criminal [conviction]”).
In re Pardee, 872 N.W.2d 384, 391 (Iowa 2015).
But a criminal acquittal does not necessarily help a civil defendant who is sued for damages stemming from an alleged criminal act.
Behrles' criminal acquittals, apparently relying on the long-standing rule that the record of an acquittal in a criminal prosecution is not admissible in evidence in a civil action to establish the truth of the facts on which it was rendered. See Book v. Datema, 256 Iowa 1330, 131 N.W.2d 470, 471 (Iowa 1964). The defendants urged the trial court to disregard the rule under the circumstances. They argued the jury was likely to be left with unanswered questions after the plaintiff called the investigating officer to testify about the incident. The trial court was not persuaded by the defendant's argument and ruled the evidence excluded. We find no abuse of discretion in the court's decision.
Johnson v. Behrle, No. 01-0318, 2002 WL 1334727, at *1 (Iowa Ct. App. June 19, 2002).
Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 6 of 23 185 c. If the civil damages case precedes the criminal case, the dangers facing your client increase exponentially, but with proper planning and strategy, your client can survive the civil and criminal cases (Carter case)
As the burden of proof in a civil matter is only preponderance of the evidence, each fact to support a civil damages claim must only be established by a preponderance.
The City contends a civil finding that an employee or officer's acts and omissions constitute a criminal offense will subject individuals who are not parties in the lawsuit to criminal liability without due process protections. That is untrue. The state may only impose criminal sanctions through a criminal prosecution and conviction with attendant heightened due process protections. Given the differing burden of proof, the state could not use a judgment on a jury finding in this civil action to establish guilt in a criminal prosecution. Cf. Emp'rs Mut. Cas. Co. v. Van Haaften, 815 N.W.2d 17, 27 (Iowa 2012) (reviewing circumstances under which an adjudication is not given preclusive effect in subsequent proceedings, including procedural opportunities available only in the second action). . . .
Nevertheless, to avoid the immunity defense, the parents need only prove by a preponderance of the evidence that a City employee or officer committed the criminal act causing injury. This is a civil action for money damages. The civil burden of proof applies. The City cites no case from any jurisdiction holding that a criminal-act exception to civil immunity must be proven beyond a reasonable doubt. The higher standard applies in criminal cases because the stakes are higher upon a conviction—the loss of liberty through imprisonment, the numerous collateral consequences, and the stigma of a criminal record.
Iowa law allows civil and criminal remedies to be pursued independently. See id. § 611.21 (“The right of civil remedy is not merged in a public offense and is not restricted for other violation of law, but may in all cases be enforced independently of and in addition to the punishment of the former.”); id. § 701.10 (“The fact that one may be subjected to a criminal prosecution in no way limits the right which anyone may have to a civil remedy.”). Our tort law routinely allows proof of criminal offenses by a preponderance of the evidence to recover damages in civil cases. See, e.g., Jones v. Blair, 387 N.W.2d 349, 352 (Iowa 1986) (“A violation of statutory rules of the road constitutes negligence per se....”). The reason to require proof beyond a reasonable doubt does not apply in a civil action:
The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interest of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 7 of 23 186 stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.
In re Winship, 397 U.S. 358, 363–64, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375 (1970). We reiterate the timeless principles underlying the differing burdens of proof in civil and criminal proceedings:
“The rule of evidence requiring proof beyond a reasonable doubt is generally applicable only in strictly criminal proceedings. It is founded upon the reason that a greater degree of probability should be required as a ground of judgment in criminal cases, which affect life or liberty, than may safely be adopted in cases where civil rights only are ascertained. It often happens that civil suits involve the proof of acts which expose the party to a criminal prosecution. Such are proceedings under the statute for the maintenance of bastard children, proceedings to obtain a divorce for adultery, actions for assaults, actions for criminal conversation or for seduction, and others which might be named. And in such actions, which are brought for the determination of civil rights, the general rule applicable to civil suits prevails, that proof by a reasonable preponderance of the evidence is sufficient.”
United States v. Regan, 232 U.S. 37, 49, 34 S.Ct. 213, 217, 58 L.Ed. 494, 499 (1914) (citation omitted) (quoting Roberge v. Burnham, 124 Mass. 277, 278 (1878)).
Accordingly, on remand, the district court shall instruct the jury using the civil preponderance-of-the-evidence standard to determine whether the acts or omissions of a City employee or officer constitute manslaughter, a criminal offense avoiding the immunity defense in Iowa Code section 670.4(12).
Sanon v. City of Pella, 865 N.W.2d 506, 516–17 (Iowa 2015).
To support a case for damages based on an alleged criminal act, civil plaintiffs are permitted to perform discovery and request to depose the defendant, which could provide statements by the defendant, under oath, to be used to support a later criminal prosecution. It is important for counsel to assert the necessary principles to protect a client’s Fifth Amendment rights. See Garrity v. New Jersey, 385 U.S. 493 (1966) (exercise of privilege against self-incrimination may not be conditioned upon job forfeiture because this forces a choice “between the rock and the whirlpool”); United States v. Kordel, 397 U.S. 1, 11 (1970) (“the Government may not use evidence against a defendant in a criminal case which has been coerced from him under penalty of either giving the evidence or suffering forfeiture of his property.”). Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 8 of 23 187
However, “it is not unconstitutional to force a litigant to choose between invoking the fifth amendment in a civil case, thus risking a loss there, or answering the questions in the civil context, thus risking subsequent criminal prosecution.” Brock v. Tolkow, 109 F.R.D. 116, 119 (E.D.N.Y. 1985); accord Baxter v. Palmigiano, 425 U.S. 308, 318–19, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976); United States v. White, 589 F.2d 1283, 1286–87 (5th Cir.1979); Arthurs v. Stern, 560 F.2d 477, 478–79 (1st Cir.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 768, 54 L.Ed.2d 782 (1978); United States v. Rubinson, 543 F.2d 951, 961 (2d Cir.), cert. denied, 429 U.S. 850, 97 S.Ct. 139, 50 L.Ed.2d 124 (1976).
Realistically, regardless of deposition or other discovery requests, a civil client faces potential criminal prosecution based on answers to interrogatories answered under oath, whether by deposition or written responses.
III. Protecting Your Civil Client From Criminal Liability
a. Opposing counsel in civil matters does not have the constitutional duty to disclose exculpatory evidence
[C]ourts have only in rare instances found Brady applicable in civil proceedings, mainly in those unusual cases where the potential consequences equal or exceed those of most criminal convictions. We see no reason to expand Brady to this administrative adjudication. In a criminal case, the government's duty to disclose under Brady arises from the obligation of the prosecutor not simply to convict, but to see that justice is done. The civil context is not analogous. There, the basic duty of an attorney to his or her client is not offset by the countervailing duty a government prosecutor has to exercise in the interest of justice his or her awesome and extraordinary powers. Fox ex rel. Fox v. Elk Run Coal Co., 739 F.3d 131, 138–39 (4th Cir. 2014) (internal citations and quotations omitted).
“We have recently held that civil rules of discovery are not a part of our criminal procedure.” State v. McClain, 256 Iowa 175, 181, 125 N.W.2d 764, 767 (1964)
In State v. District Court (Delaware County) 253 Iowa 903, 114 N.W.2d 317, we analyze the provisions of Code section 781.10 and the Rules of Civil Procedure. We there hold section 781.10 gives a defendant a right to take the deposition of a witness who will be unavailable at trial time on notice or commission in the same manner as in civil cases but that it does not make the Rules of Civil Procedure governing discovery depositions applicable to criminal cases. We there hold discovery rules are confined to civil cases.
State v. Gates, 260 Iowa 772, 779, 150 N.W.2d 617, 621 (1967). Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 9 of 23 188 b. You, as counsel for a civil defendant have an obligation to ensure your client (and potential later criminal defendant) provides discovery responses and perhaps even testimony under oath
“[i]t is not unconstitutional to force a litigant to choose between invoking the fifth amendment in a civil case, thus risking a loss there, or answering the questions in the civil context, thus risking subsequent criminal prosecution.” Brock, 109 F.R.D. at 11; accord Baxter, 425 U.S. at 318–19.
A failure to adhere to this obligation can even lead to sanctions on counsel.
The district court specifically based its order of fees on its authority under rules 1.517(2)(b)(5) and 1.602(5). A protective order is an “order to provide or permit discovery” under rule 1.517(2)(b), which authorizes sanctions for failure to obey such orders. It is also a “pretrial order” under rule 1.602(5). Both rules allow sanctions to be levied against a party or a party's attorney. A party's attorney may be sanctioned, even if the attorney's client took no steps to violate the discovery rules, when it is the attorney's conduct which violated a court order. See Kendall/Hunt Publ'g Co. v. Rowe, 424 N.W.2d 235, 242 (Iowa 1988)(noting rule 1.517–then rule 134–mirrors federal rule 37 and cases under rule 37 are persuasive authority); Whitehead v. Gateway Chevrolet, Oldsmobile, No. 03–C–5684, 2004 WL 1459478, at *1, 3 (N.D. Ill. June 29, 2004) (imposing sanction of attorneys' fees under Rule 37(b) on attorney who used confidential information from a previous case, in violation of a protective order, to file the complaint in the instant case); Poliquin v. Garden Way, Inc., 154 F.R.D. 29, 31–32 (D. Me. 1994) (sanctioning attorney under rule 37(b), including the potential for reasonable attorneys' fees to be set at a later date, when attorney disclosed an affidavit protected by a protective order to co-counsel in a separate case).
The district court had authority to sanction Stowers as either a party or a party's attorney. The protective order, to which Stowers signed an undertaking to be bound, specifically lists Stowers as a party. It states, “Parties: Jan Reis and her spouse ....” Additionally, there was sufficient evidence supporting the district court's finding that Stowers acted as an attorney to Reis during the litigation An attorney-client relationship exists when: “ ‘(1) a person sought advice or assistance from attorney, (2) the advice or assistance sought pertained to matters within the attorney's professional competence, and (3) the attorney expressly or impliedly agreed to give or actually gave the desired advice or assistance’ ” State v. Parker, 747 N.W.2d 196, 203-04 (Iowa 2008)(quoting Comm. on Prof'l Ethics & Conduct v. Wunschel, 461 N.W.2d 840, 845 (Iowa 1990)). Although Reis denied during the contempt hearing that Stowers had acted as her attorney, she also admitted that she talked him about legal matters and relied on him to help her interpret things. Newkirk, Reis's attorney Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 10 of 23 189 during the pending litigation, testified that Fiedler & Newkirk had taken the position that Stowers was acting as an attorney for Ms. Reis. Additionally, *74 Stowers sent emails to Fiedler & Newkirk on Reis's behalf demanding return of her files and case materials and citing case law. When Armentrout, Care Initiatives' attorney, sent a letter to Reis and Stowers demanding return of its documents, Stowers responded, noting that Armentrout's letter “poses a number of legal and ethical issues.”
The district court did not err in determining an award of fees was within the remedies available. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 784 (9th Cir.1983) (finding insufficient evidence for criminal contempt but ordering reasonable attorneys fees for violation of protective order under federal rule 37); Kehm v. Procter & Gamble Mfg. Co., 580 F.Supp. 913, 915–16 (N.D.Iowa 1983) (ordering reasonable attorneys fees and costs under federal rule 37 for violation of protective order where attorney sold confidential documents after entry of judgment). Although the district court did not have authority to order fees as a sanction for contempt because of the limits imposed by section 665.4, the district court was allowed to impose fees pursuant to rules 1.517(2)(b)(5) and 1.602(5) Reis v. Iowa Dist. Court for Polk Cty., 787 N.W.2d 61, 73–74 (Iowa 2010).
c. Fifth Amendment is only a shadow
And, as discussed above, often civil defendants are stuck having to decide whether to answer deposition questions or discovery requests under oath, or have an adverse inference put against them for invoking their constitutional rights.
[t]ext of the Fifth Amendment[:] No person ... shall be compelled in any criminal case to be a witness against himself. U.S. Const. amend. V. It is well settled that in a criminal prosecution the jury may not be instructed defendant's failure to testify could be considered an inference of guilt; furthermore, a prosecutor may not comment on defendant's failure to take the stand. The Fifth Amendment's protections extend to nonparty witnesses.
State v. Heard, 934 N.W.2d 433, 439–40 (Iowa 2019) (internal citations, quotations, and footnotes omitted).
“In civil cases, [Iowa court’s] allow adverse inferences to be drawn when a witness refuses to answer questions by invoking the Fifth Amendment privilege.” Id. at 440 n.4; see also Craig Foster Ford, Inc. v. Iowa Dep't of Transp., 562 N.W.2d 618, 623 (Iowa 1997) (“Such adverse inferences are not constitutionally off limits in civil cases.”).
Therefore, when facing the decision whether to answer deposition questions or written discovery, a civil defendant must decide between having an adverse interest placed against him or her, and providing potential evidence against them in the criminal context. Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 11 of 23 190 d. Civil burden of proof is low, which can be used in your client’s favor
However, the horizon is not always cloudy. As discussed below, a civil defense verdict can be extremely beneficial for your client in the criminal context.
Win the civil case, and likely preclude future criminal charges
We are in agreement with petitioner that the doctrine of collateral estoppel is not made inapplicable by the fact that this is a criminal case, whereas the prior proceedings were civil in character. We agree further that the nonexistence of a fact may be established by a judgment no less than its existence; that, in other words, a party may be precluded under the doctrine of collateral estoppel from attempting a second time to prove a fact that he sought unsuccessfully to prove in a prior action.
Yates v. United States, 354 U.S. 298, 335–36, 77 S. Ct. 1064, 1085–86, 1 L. Ed. 2d 1356 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978) (internal citation omitted).
More simplistically, where a civil defendant successfully defends against a civil damages suit where the facts at issue would also constitute elements of a criminal charge, the civil defense verdict has a preclusive effect on a subsequent criminal prosecution. See United States v. Egan Marine Corp., 843 F.3d 674 (7th Cir. 2016).
IV. Helping Your Criminal Client With Civil Litigation
a. Developing meaningful interrogatories and discovery requests
If the civil case comes before criminal prosecution, depositions and well-crafted discovery requests can uncover helpful evidence and preserve information for later use in a defense. These requests can be broader than the disclosure requirements placed on prosecutors in criminal cases.
Our rules of discovery exist to avoid the type of surprise . . . . See White v. Citizens Nat’l Bank of Boone, 262 N.W.2d 812, 816 (Iowa 1978). A trial should be a search for the truth, and our rules of discovery are an avenue to achieving that goal. The discovery process seeks to make a trial into “ ‘a fair contest with the basic issues and facts disclosed to the fullest practicable extent.’ ” Comes v. Microsoft Corp., 775 N.W.2d 302, 311 (Iowa 2009) (quoting United States v. Procter & Gamble Co., 356 U.S. 677, 682– 83, 78 S.Ct. 983, 986–87, 2 L.Ed.2d 1077, 1082 (1958)).
Generally, discovery following the filing of a lawsuit involves any information that is “relevant” and “not privileged.” Iowa R. Civ. P. 1.503(1). A variety of discovery methods exist under our rules for a party to gather such Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 12 of 23 191 information from another party, including the use of written interrogatories. See id. r. 1.509(1) (permitting a party to serve written interrogatories to be answered by the other party). The rules governing interrogatories require a party who has been served with interrogatories to answer each written question unless an objection to the interrogatory is lodged. Id. An objection suspends the obligation to answer until the objection is resolved. See id. (requiring either an answer or objection in response to an interrogatory); see also Schaap v. Chicago & Nw. Ry., 261 Iowa 646, 649, 155 N.W.2d 531, 533 (1968) (holding a party who withholds an objection to interrogatories waives the objection and is required to make a full answer). Additionally, the rules require a party who has responded to an interrogatory to later supplement or amend the response to include information acquired after the initial response was made when, among other circumstances, the question addressed a matter that bore “materially upon a claim or defense asserted by any party to the action.” Id. r. 1.503(4). Consistent with the discovery rules in general, the duty to supplement seeks to clarify issues prior to trial, avoid surprise to parties, and allow a complete opportunity to prepare for trial. White, 262 N.W.2d at 816. Thus, a party has a clear duty to supplement answers to interrogatories.
Rule 1.509 provides that “[e]ach interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for the objection shall be stated in lieu of an answer.” Iowa R. Civ. P. 1.509(1) (emphasis added). Thus, the rule provides that a party should either answer or object to an interrogatory but does not specify what happens if a party does both. Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 386 (Iowa 2012).
However, it is unlikely that a civil litigant will be allowed to uncover portions of the DCI or other criminal investigation files if that investigation is ongoing., due to their privileged nature. State ex rel. Shanahan v. Iowa Dist. Court for Iowa Cty., 356 N.W.2d 523, 530 (Iowa 1984).
b. Expand the sandbox, FOIA requests and broadening requests
i. Very difficult to get State’s investigation file if criminal charges not filed / open investigation
The Shanahan case provides that discovery requests and subpoenas for criminal investigation files in an open investigation are protected and highly unlikely to be disclosed. However, the same does not hold to true for discovery requests made for information in closed investigations or requests made through a freedom of information act request.
Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 13 of 23 192 The public records act is generally distinct from our discovery rules. See Iowa R. Civ. P. 1.500–.517. In Mediacom Iowa, L.L.C. v. Incorporated City of Spencer, we explained that our open records law “ordinarily has no application to discovery of [government documents] in litigation.” 682 N.W.2d 62, 69 (Iowa 2004). A governmental party engaged in litigation cannot refuse to produce a document requested in discovery on the basis that the document would be exempt from production pursuant to an open records request. See id.
Our view in this regard is similar to federal law. Under federal law, the Freedom of Information Act (FOIA) “was not intended to supplement or displace rules of discovery.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 153, 110 S.Ct. 471, 475, 107 L.Ed.2d 462 (1989). Many federal decisions hold that a document exempt from production through an open records law may still be produced in discovery. See, *237 e.g., Kamakana v. City of Honolulu, 447 F.3d 1172, 1185 (9th Cir. 2006) (“[E]xempt documents [under FOIA] are not automatically privileged in civil discovery.”); Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1344 (D.C. Cir. 1984) (“If information in government documents is exempt from disclosure to the general public under FOIA, it does not automatically follow the information is privileged ... and thus not discoverable in civil litigation.”); Kerr v. U.S. Dist. Ct., 511 F.2d 192, 197 (9th Cir. 1975) (stating that FOIA exemptions were not intended to create evidentiary privileges in civil discovery), aff'd, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); Pleasant Hill Bank v. United States, 58 F.R.D. 97, 99 (W.D. Mo. 1973) (“Even if we posit arguendo that the [government] documents are exempt from disclosure, it does not necessarily follow that they are privileged for purposes of civil discovery.”).
Other states, too, view their state open records law as separate from rules of discovery, and therefore, an exemption in the former does not preclude production pursuant to the latter. See, e.g., Martinelli v. Dist. Ct., 199 Colo. 163, 612 P.2d 1083, 1093–94 (1980) (en banc) (“We ... hold that the Colorado open records laws ... do not, ipso facto, exempt the [government documents] from discovery in civil litigation.”); Fla. House of Representatives v. Romo, 113 So.3d 117, 127–28 (Fla. Dist. Ct. App. 2013) (stating that a government document exempt from production under the state open records law must be produced in discovery unless otherwise privileged or a balancing of the parties' interests weighs in favor of keeping the document confidential), quashed on other grounds by League of Women Voters of Fla. v. Fla. House of Representatives, 132 So.3d 135, 138 (Fla. 2013); Tighe v. City of Honolulu, 55 Haw. 420, 520 P.2d 1345, 1348 (1974) (“The very broad discovery specifically granted to litigants ... cannot be said to be limited by the terms of a charter provision directed toward regulation of the entirely different situation of the general exploration of public records by any citizen during general business hours.”); In re Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 14 of 23 193 Subpoena Duces Tecum, 445 Mass. 685, 840 N.E.2d 470, 475 (2006) (“Discovery, by its nature, is quite broad. The public records law does not restrict this breadth.” (Citations omitted.)); Truel v. City of Dearborn, 291 Mich.App. 125, 804 N.W.2d 744, 748 (2010) (“[T]he discovery rules and the [state open records law] represent ‘two independent schemes for obtaining information.’ Therefore, discovery in a civil action and the [state open records law] are subject to different procedures and enforcement mechanisms.” (quoting Cent. Mich. Univ. Supervisory-Tech. Ass'n, MEA/NEA v. Bd. of Trs., 223 Mich.App. 727, 567 N.W.2d 696, 698 (1997) (Holbrook, J., concurring))). For instance, in Boston Police Superior Officers Federation v. City of Boston, 414 Mass. 458, 608 N.E.2d 1023, 1027 (1993), the Massachusetts Supreme Judicial Court held that a trial judge properly required the City of Boston to produce, in discovery, logs of the internal affairs division that may be exempt from production through the state open records law. The court explained that “the public record law and its exceptions do not restrict the ... power to subpoena documents.” Id.
The rationales for those decisions are based on “the essential differences between the discovery process and the FOIA request.” Janice Toran, Information Disclosure in Civil Actions: The Freedom of Information Act and the Federal Discovery Rules, 49 Geo. Wash. L. Rev. 843, 851 (1981) [hereinafter Toran]. While a litigant can obtain discovery of things “relate[d] to the claim or defense of the party seeking discovery or to the claim or defense of any other party” so long as the things are *238 “reasonably calculated to lead to the discovery of admissible evidence,” Iowa R. Civ. P. 1.503(1); see Toran, 49 Geo. Wash. L. Rev. at 851, the relevance of materials to litigation or other matters is irrelevant to disclosure under open records laws, see Toran, 49 Geo. Wash. L. Rev. at 852. That difference requires the court to look beyond the mere presence of an open records exemption in determining whether to allow discovery. Id.; see, e.g., Jupiter Painting Contracting Co. v. United States, 87 F.R.D. 593, 597 (E.D. Pa. 1980) (“[A] FOIA exemption cannot even indirectly delimit claims of privilege since it does not take into account the degree of need for the information exhibited by the claimant.”). Further, open records law exemptions do not limit civil discovery because of “the distinction between open disclosure to the public at large under FOIA and the much more restricted disclosure which occurs under the discovery rules.” Mark S. Wallace, Discovery of Government Documents and the Official Information Privilege, 76 Colum. L. Rev. 142, 153–54 (1976).
The latter point bears further consideration because it is arguably germane to the issue in the case before us. Some courts have allowed discovery of documents exempt from open records requests because open records laws apply to disclosure to the public generally as opposed to private litigants. See, e.g., Denny v. Carey, 78 F.R.D. 370, 373 (E.D. Pa. 1978) (“Exemption from the Freedom of Information Act ... does not create Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 15 of 23 194 independently any evidentiary privilege; the effect of such exclusion, rather, is only to permit the withholding of these categories of information from the public generally.”); Douglas v. Windham Super. Ct., 157 Vt. 34, 597 A.2d 774, 776 n.2 (1991) (“Petitioner has noted that the Vermont Access to Public Records Act, 1 V.S.A. § 317(b)(5), has an exception from public disclosure for ‘disciplinary investigation’ records of a ‘professional licensing agency.’ This exception deals with disclosure to the public generally, not disclosure in response to discovery in litigation. It does not create a privilege.”); Maclay v. Jones, 208 W.Va. 569, 542 S.E.2d 83, 89 (2000) (“[W]e hold that the provisions of this state's FOIA, which address confidentiality as to the public generally, were not intended to shield law enforcement investigatory materials from a legitimate discovery request when such information is otherwise subject to discovery in the course of civil proceedings.”).
The open records law may inform a district court's decision on a protective order, but it “does not trump our discovery rules.” Mediacom, 682 N.W.2d at 69. This is because
there is nothing in [Iowa Code] section 22.7 that suggests the legislature intended to limit the discovery rights of litigants in cases involving governmental entities. To the contrary, section 22.7 indicates the opposite because it allows disclosure upon a court order.
Id.; see also Laxalt v. McClatchy, 809 F.2d 885, 889 (D.C. Cir. 1987) (refusing to infer qualified discovery privilege from congressional silence, especially where Congress expressly permitted court-ordered disclosure). Moreover, “[i]f a[ ] FOIA exemption is the prime determinant in the balancing process, the needs of one party—the non-governmental party—are effectively disregarded,” Toran, 49 Geo. Wash. L. Rev. at 853, even though our discovery rules permit consideration of the requesting party's need for discovery in decisions allowing or limiting discovery, see Iowa R. Civ. P. 1.504(1) (stating that a protective order should be granted only where “justice requires” and “for good cause shown”); see also Iowa R. Civ. P. 1.503(1) (providing for discovery so long as “the information sought appears reasonably calculated to *239 lead to the discovery of admissible evidence”); Mediacom, 682 N.W.2d at 66 (“[T]he philosophy underlying our discovery rules is that ‘litigants are entitled to every person's evidence, and the law favors full access to relevant information.’ ” (quoting State ex rel. Miller v. Nat'l Dietary Research, Inc., 454 N.W.2d 820, 822–23 (Iowa 1990))). Therefore, giving conclusive weight to an open records exemption in deciding on a protective order would thwart legislative intent.
Mitchell v. City of Cedar Rapids, 926 N.W.2d 222, 236–39 (Iowa 2019).
Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 16 of 23 195 c. Remedies if Failure to Disclose for New Evidence / Fraudulent Behavior
i. Civil
If a party fails to fully answer discovery requests, the court has the authority to fashion a proper sanction, which could be to exclude evidence, even if the excluded evidence is determinative of a final issue in the case.
This power includes the authority to exclude evidence for failure to supplement discovery. Noncompliance with discovery requirements is often not tolerated. We will not reverse the imposition of a sanction unless there has been an abuse of discretion. An abuse of discretion consists of a ruling which rests upon clearly untenable or unreasonable grounds.
As noted previously, Kurtzhals attempted to determine the amount of damages claimed through both interrogatories and in a deposition of Lawson. Both attempts were unsuccessful. Lawson also failed to respond to a settlement demand. The discovery deadline passed with no supplementation of Lawson's prior answers. It was not until just days prior to trial and after receiving a motion in limine that Lawson finally provided the amount of damages claimed.
Confronted with this late supplementation, the court had a range of choices beyond the one ordered. It could have allowed the supplementation and the claim to be made for those damages at trial. It could have offered the defendant the option of a continuance of the trial. Dismissal of the claim may also be available in some circumstances.
In determining whether the court has abused its discretion, we must determine whether the trial court appropriately considered the options available. In determining whether ... a sanction is appropriate, the trial court should consider several factors, including: (1) the party's reasons for not providing the challenged evidence during discovery; (2) the importance of the evidence; (3) the time needed for the other side to prepare to meet the evidence; and (4) the propriety of granting a continuance. We believe that these factors provide an appropriate framework for determining whether the trial court abused its discretion in prohibiting Lawson from presenting any evidence of damages not previously provided in his interrogatory responses. In reviewing these factors, we find that the district court did not abuse its discretion in limiting Lawson's claim to only those damages previously disclosed.
Lawson v. Kurtzhals, 792 N.W.2d 251, 258–59 (Iowa 2010) (internal citations and quotations omitted).
Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 17 of 23 196 1. Rules 1.1002 – 1.1007 Request for New Trial
Request for new trial or judgment notwithstanding the verdict under Rules 1.1002 through 1.1007 must be filed within 30 days after verdict.
A motion for judgment notwithstanding the verdict must stand on grounds raised in the directed verdict motion. Dutcher v. Lewis, 221 N.W.2d 755, 760 (Iowa 1974). On appeal from such judgment, review by an appellate court is limited to those grounds raised in the directed verdict motion. Meeker v. City of Clinton, 259 N.W.2d 822, 828 (Iowa 1977).
Neither these commonly recited rules, our rules of civil procedure, nor previous cases provide any definitive guidance on when a motion for a directed verdict must be made. Nothing in the rules requires a motion for directed verdict occur at the close of plaintiff's case. Iowa Rule of Civil Procedure 1.945 provides that “[a]fter a party has rested, the adverse party may move for dismissal because no right to relief has been shown, under the law or facts, without waiving the right to offer evidence thereafter.” This rule is permissive rather than mandatory. Christensen v. Sheldon, 245 Iowa 674, 687–89, 63 N.W.2d 892, 900–01 (1954). Iowa Rule of Civil Procedure 1.1003(2), on the other hand, provides:
If the movant was entitled to a directed verdict at the close of all the evidence, and moved therefor, and the jury did not return such verdict, the court may then either grant a new trial or enter judgment as though it had directed a verdict for the movant. (Emphasis added.) This rule contemplates that the motion for a directed verdict is to be made at the close of all evidence.
In Christensen, we approved the procedure of not granting motions for directed verdict until the completion of all evidence except in the most obvious cases. Christensen, 245 Iowa at 688–89, 63 N.W.2d at 901. We continue to believe this to be the best course of action. Even the weakest cases may gain strength during the defendant's presentation of the case. Id. at 688, 63 N.W.2d at 900 (“ ‘There is ... a failure of justice, where the evidence for the defense discloses a case against a defendant already prematurely acquitted, that such acquittal ought never to take place until there is the strongest reason to believe that such a consequence cannot follow.’ ”) (quoting Castle v. Bullard, 23 How. 172, 64 U.S. 172, 185, 16 L.Ed. 424, 428 (1859)).
Because in most cases it will be prudent not to consider a motion for directed verdict until all evidence has been presented, it would be exalting form over substance to require such motions to be made at the close of plaintiff's case and again at the close of all evidence. We therefore hold that
Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 18 of 23 197 a motion for directed verdict need not be made at the close of plaintiff's case in order to preserve error.
Royal Indem. Co. v. Factory Mut. Ins. Co., 786 N.W.2d 839, 845 (Iowa 2010).
Regarding motions for a new trial under Rule 1.1004:
On motion, the aggrieved party may have an adverse verdict, decision, or report or some portion thereof vacated and a new trial granted if any of the following causes materially affected movant's substantial rights:
1.1004(1) Irregularity in the proceedings of the court, jury, master, or prevailing party; or any order of the court or master or abuse of discretion which prevented the movant from having a fair trial. 1.1004(2) Misconduct of the jury or prevailing party. 1.1004(3) Accident or surprise which ordinary prudence could not have guarded against. 1.1004(4) Excessive or inadequate damages appearing to have been influenced by passion or prejudice. 1.1004(5) Error in fixing the amount of the recovery, whether too large or too small, in an action upon contract or for injury to or detention of property. 1.1004(6) That the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law. 1.1004(7) Material evidence, newly discovered, which could not with reasonable diligence have been discovered and produced at the trial. 1.1004(8) Errors of law occurring in the proceedings, or mistakes of fact by the court. 1.1004(9) On any ground stated in rule 1.1003, the motion specifying the defect or cause giving rise thereto.
Iowa R. Civ. P. 1.1004.
Under rule 1.1004, a district court should only grant a new trial if one of the grounds listed in the rule applies and the movant's substantial rights were materially affected. See Iowa R. Civ. P. 1.1004. When the asserted ground for a new trial is that the district court abused its discretion, the movant must show the error “prevented the movant from having a fair trial.” Id. r. 1.1004(1). Thus, in order to reverse the district court and grant Bluefield's motion for a new trial, we must not only be convinced that the district court abused its discretion by admitting the photographs, we must also be convinced that the error materially affected Bluefield's substantial rights.
Fry v. Blauvelt, 818 N.W.2d 123, 130 (Iowa 2012).
Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 19 of 23 198 2. Rules 1012 – 1.1013 Petition to Vacate or Modify Judgment
Iowa Rules of Civil Procedure allow for petitions to vacate or modify a judgment when evidence is discovered to support the motion more than 30 days, but less than a year, after a verdict or judgment.
Upon timely petition and notice under rule 1.1013 the court may correct, vacate or modify a final judgment or order, or grant a new trial on any of the following grounds:
1.1012(1) Mistake, neglect or omission of the clerk. 1.1012(2) Irregularity or fraud practiced in obtaining it. 1.1012(3) Erroneous proceedings against a minor or person of unsound mind, when such errors or condition of mind do not appear in the record. 1.1012(4) Death of a party before entry of the judgment or order, and its entry without substitution of a proper representative. 1.1012(5) Unavoidable casualty or misfortune preventing the party from prosecuting or defending. 1.1012(6) Material evidence, newly discovered, which could not with reasonable diligence have been discovered and produced at the trial, and was not discovered within the time for moving for new trial under rule 1.1004.
Iowa R. Civ. P. 1.1012.
A petition for relief under rule 1.1012 requires payment of the filing fee set forth in Iowa Code section 602.8105(1)(a), or if made in small claims, the filing fee set forth in section 631.6(1)(a), and must be filed and served in the original action within one year after the entry of the judgment or order involved. It shall state the grounds for relief, and, if it seeks a new trial, show that they were not and could not have been discovered in time to proceed under rule 1.977 or 1.1004. If the pleadings in the original action did not allege a meritorious action or defense the petition shall do so. It shall be supported by affidavit as provided in rule 1.413(3).
Iowa R. Civ. P. 1.1013(1).
Importantly, this one-year deadline may be equitably tolled with proper showing, regardless of whether original action was at law or equity. See Shaw v. Addison, 18 N.W.2d 796 (Iowa 1945); Johnson v. Mitchell, 489 N.W.2d 411 (Iowa Ct. App. 1992); In re Marriage of Rhinehart, 780 N.W.2d 248 (Table), 2010 WL 446560 (Iowa Ct. App. 2010).
Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 20 of 23 199 ii. Criminal
1. Rule 2.24: Following Verdict and Prior to Sentencing and Judgment
Iowa Rule of Criminal Procedure 2.24(1) states: “Permissible motions after trial include motions for new trial, motions in arrest of judgment, and motions to correct a sentence.” Iowa R.Crim. P. 2.24(1). Only subpart (5) of rule 2.24 addresses motions to correct a sentence, and it simply provides that “[t]he court may correct an illegal sentence at any time.” Iowa R.Crim. P. 2.24(5).
State v. Lathrop, 781 N.W.2d 288, 292 (Iowa 2010) (internal footnote omitted).
The court may grant a new trial for any or all of the following causes:
(1) When the trial has been held in the absence of the defendant, in cases where such presence is required by law, except as provided in rule 2.27.
(2) When the jury has received any evidence, paper or document out of court not authorized by the court.
(3) When the jury have separated without leave of court, after retiring to deliberate upon their verdict, or have been guilty of any misconduct tending to prevent a fair and just consideration of the case.
(4) When the verdict has been decided by lot, or by means other than a fair expression of opinion on the part of all jurors.
(5) When the court has misdirected the jury in a material matter of law, or has erred in the decision of any question of law during the course of the trial, or when the prosecuting attorney has been guilty of prejudicial misconduct during the trial thereof before a jury.
(6) When the verdict is contrary to law or evidence.
(7) When the court has refused properly to instruct the jury.
(8) When the defendant has discovered important and material evidence in the defendant's favor since the verdict, which the defendant could not with reasonable diligence have discovered and produced at the trial. A motion based upon this ground shall be made without unreasonable delay and, in any event, within two years after final judgment, but such motion may be considered thereafter upon a showing of good cause. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits or testimony of the witnesses by whom Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 21 of 23 200 such evidence is expected to be given, and if time is required by the defendant to procure such affidavits or testimony, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may be reasonable.
(9) When from any other cause the defendant has not received a fair and impartial trial.
Iowa R. Civ. P. 2.24(2)(b).
Regarding motions in arrest of judgment,
a. Motion in arrest of judgment; definition and grounds. A motion in arrest of judgment is an application by the defendant that no judgment be rendered on a finding, plea, or verdict of guilty. Such motion shall be granted when upon the whole record no legal judgment can be pronounced. A defendant's failure to challenge the adequacy of a guilty plea proceeding by motion in arrest of judgment shall preclude the defendant's right to assert such challenge on appeal.
b. Time of making motion by party. The motion must be made not later than 45 days after plea of guilty, verdict of guilty, or special verdict upon which a judgment of conviction may be rendered, but in any case not later than five days before the date set for pronouncing judgment.
Iowa R. Civ. P. 2.24(3).
2. Postconviction Proceedings under Iowa Code Chapter 822
Additionally, a person convicted of a crime has three years from the date of sentencing, or from the date procedendo issues on their direct appeal, in which to petition for postconviction relief.
1. Any person who has been convicted of, or sentenced for, a public offense and who claims any of the following may institute, without paying a filing fee, a proceeding under this chapter to secure relief:
a. The conviction or sentence was in violation of the Constitution of the United States or the Constitution or laws of this state. b. The court was without jurisdiction to impose sentence. c. The sentence exceeds the maximum authorized by law. d. There exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice.
Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 22 of 23 201 e. The person's sentence has expired, or probation, parole, or conditional release has been unlawfully revoked, or the person is otherwise unlawfully held in custody or other restraint. f. The person's reduction of sentence pursuant to sections 903A.1 through 903A.7 has been unlawfully forfeited and the person has exhausted the appeal procedure of section 903A.3, subsection 2. g. The conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error formerly available under any common law, statutory or other writ, motion, petition, proceeding, or remedy, except alleged error relating to restitution, court costs, or fees under section 904.702 or chapter 815 or 910. h. The results of DNA profiling ordered pursuant to an application filed under section 81.10 would have changed the outcome of the trial or voided the factual basis of a guilty plea had the profiling been conducted prior to the conviction. 2. This remedy is not a substitute for nor does it affect any remedy, incident to the proceedings in the trial court, or of direct review of the sentence or conviction. Except as otherwise provided in this chapter, it comprehends and takes the place of all other common law, statutory, or other remedies formerly available for challenging the validity of the conviction or sentence. It shall be used exclusively in place of them.
Iowa Code § 822.2.
Typically, these petitions allege ineffective assistance of trial or direct appellate counsel, prosecutorial conduct for failing to disclose exculpatory evidence, or newly discovered evidence that could not, with reasonable diligence, have been discovered previously.
Postconviction cases are considered collateral civil matters, therefore the rules of civil procedure apply and the cases are tried to the bench, not to a jury.
Civil Litigation and Criminal Charges Christine Branstad, IAJ Seminar, Spring 2021 Page 23 of 23 202 Section 2
C.
Litigation Before the Grievance Commission
David L. Brown, Des Moines
203 TRENDING ETHICAL ISSUES FOR LAWYERS
DAVID L. BROWN Hansen, McClintock & Riley 520 Walnut St., 5th Floor Des Moines, Iowa 50309 Telephone: (515) 244-2141 Facsimile: (515) 244-2931 E-Mail: [email protected]
I. THE ATTORNEY DISCIPLINARY PROCESS.
A. The Board and Commission:
a. Iowa Supreme Court Attorney Disciplinary Board
i. Created by Iowa Ct. R. 34.6(1) and consists of nine lawyers and three laypersons appointed by the supreme court, with one of the lawyers designated annually as chair. Members shall serve no more than two three-year terms.
ii. The board members are appointed commissioners of the supreme court to initiate or receive and process complaints against any attorney. Upon completion of any such investigation, the board shall either dismiss the complaint, admonish or reprimand the attorney, or file and prosecute the complaint before the grievance commission or any division thereof. Iowa Ct. R. 34.6(1).
iii. Current Members: See attached list
B. The Grievance Commission of the Supreme Court of Iowa
a. Clerk- The director of the office of professional regulation must designate a clerk and an assistant clerk for the grievance commission. Iowa Ct. R. 34.2
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204 b. Divisions- Each division shall consist of five members selected and designated by the chair. The chair designates one of the five as president of said division. Iowa Ct. R. 36.4.
c. Current Members: See attached list.
C. Complaints: Iowa Court Rule 35.1.
a. Filing
i. Once a complaint has been received, the assistant director for attorney discipline must evaluate all information coming to his or her attention from the complaint or from any other sources alleging attorney misconduct or incapacity. Iowa Ct. R. 35.4(1).
ii. The board will notify the complainant in writing that the complaint has been received and will be acted upon. Iowa Ct. R. 35.6(1).
iii. The board will serve the attorney through certified mail, marked confidential. If the attorney does not respond within 20 days, the board will send another notice, and if a response to the second notice is not made within 10 days the board may file a complaint with the Grievance Commission as an additional, separate violation. Iowa Ct. R. 35.6, 35.7.
b. Investigation
i. Iowa Ct. R. 35.8(1): Upon receipt of a response the board shall do one of the following:
1. Dismiss the complaint and so notify the complainant and the respondent in writing.
2. Cause the case to be docketed for consideration by the board at its next hearing-meeting.
2
205 3. Arrange for investigation of the complaint either by the board’s counsel or a local bar association as the chair deems appropriate.
a. The board shall have subpoena power during any investigation conducted on its behalf to compel the appearance of witness or the production of documents. Iowa Ct. R. 35.8(2).
b. The district court for the county in which the investigation is being conducted shall have jurisdiction over any objection or motion relating to a subpoena and authority to punish disobedience of a subpoena in a contempt proceeding. Iowa Ct. R. 35.8(4). c. Discovery
i. The attorney is not required to answer any interrogatory, request for admission, or a question upon oral examination, if the answer would be self-incriminatory. Iowa Ct. R. 36.13
ii. The commission may permit amendments to the complaint to conform to the proof or to raise new matters so long as the respondent has notice and a reasonable time to prepare a defense prior to the hearing. Iowa Ct. R. 36.10(3), 36.13.
iii. All records, papers, proceedings, meetings and hearings of the commission shall be confidential unless the commission recommends that the supreme court reprimand the respondent or suspend or revoke the respondent’s license. Iowa Ct. R. 34.4(1). d. Trials
i. Generally, under the speedy trial rule a trial will be held not less than 60 days and no more than 90 days after the service of the complaint. However, this requirement may be waived by the Respondent. The clerk of the grievance commission will arrange a telephone conference with members of the division
3
206 and the parties to schedule the hearing. The commission may grant reasonable continuances if requested. Iowa Ct. R. 36.10(2).
ii. Iowa Ct. R. 36.17 governs the conduct at the hearing.
1. The hearing shall not be open to the public. Iowa Ct. R. 36.17(1).
2. The respondent may present character evidence by sworn affidavit which shall be filed as part of the respondent’s exhibits. 36.17(2).
3. The respondent may defend and shall have the right to participate in the hearing in person and by counsel, to cross-examine, to be confronted by witness, and to present evidence.36.17(5).
4. The presentation of evidence shall conform to the Iowa Rules of Civil Procedure and the Iowa Rules of Evidence. All questions of procedure, including objections to evidence, shall be determined by the chair of the commission or president of the division. Iowa Ct. R. 36.17(6). e. Appeals
i. The respondent may appeal the report or recommendation filed by the grievance commission to the supreme court. The Notice of appeal must be filed within 10 days to the clerk of the grievance commission with a copy to the complainant and the clerk of the supreme court. Iowa Ct. R. 36.22(1).
ii. The complainant may apply to the supreme court for permission to appeal from a determination, ruling, report, or recommendation of the grievance commission. The application must be filed within 10 days after service of the determination, ruling, report, or recommendation on the complainant. Iowa Ct. R. 36.22(1).
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207 1. Case will be dismissed in the Board does not comply with the 10 days requirement. Iowa S. Ct. Atty. Disc. Bd. v. Atty. Doe No. 639, 748 N.W.2d 208 (Iowa 2008)
iii. An appeal of the grievance commission’s dismissal of a complaint, or of the grievance commission’s decision to issue a private admonition shall remain private and any application and subsequent filing shall refer to the Respondent as “Attorney Doe No.” (insert grievance commission number). Iowa Ct. R. 36.22(3)
II. TRENDING ETHICAL ISSUES.
a. Respondent’s Right to Confront Witnesses in a Grievance Commission hearing
i. Grievance Commission Rules of Procedure 36.17(5) states:
The respondent may defend and has the right to participate in the hearing in person and by counsel to cross-examine, to be confronted by witnesses, and to present evidence.
ii. Iowa S. Ct. Atty. Disc. Bd. v. Akpan, 20-0187, 2020 WL 6811365 (Iowa Nov. 20, 2020).
1. Commission received video-conference testimony of complaining witness over Akpan’s objection.
2. Applying the Grievance Commission rule, Supreme Court held the Commission abused its discretion in admitting videoconference testimony from the complaining witness over the responding attorney's objection.
b. Effect of prior discipline under Noel and Tindal
i. Iowa S. Ct. Atty. Disc. Bd. v. Noel, 933 N.W.2d 190 (Iowa 2019); Iowa S. Ct. Atty. Disc. Bd. v. Tindal, 949 N.W.2d 637 (Iowa 2020)
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208 1. Attorneys cannot be “double-sanctioned” for conduct that occurred prior to previously issued attorney discipline
2. “Had we been aware of the conduct that is the subject of this disciplinary proceeding at the time of our previous decision, it is unlikely this conduct would have caused us to suspend [Respondent]'s license for longer than two years. Because [Respondent's license is presently under suspension, we see no purpose served by ordering another suspension insofar as a deterrence or protection of the public is concerned.” Iowa S. Ct. Atty. Disc. Bd. v. Noel, 933 N.W.2d 190, 206 (Iowa 2019) (citing Iowa S. Ct. Atty. Disc. Bd. v. Moorman, 729 N.W.2d 801, 80 (Iowa 2007).
3. “We must determine the sanction for Tindal's conduct resulting in default notices in thirteen appeals during 2018–19, mindful that nine of those preceded his October 2018 public reprimand for default notices in sixteen appeals during 2016–17. The commission recommended a thirty-day suspension premised on its belief that our court would have suspended Tindal in 2018 had the Board charged him with another nine default notices. We disagree with that premise. In our view, given Tindal's nearly unblemished disciplinary history in 2018 (he had one prior private admonishment), he still would have received a public reprimand for the series of default notices with no client harm, whether in sixteen or twenty-five appeals. . . .
Sequence matters. (“We believe the timing of the present violations has bearing on the sanction.”). In Iowa Supreme Court Attorney Disciplinary Board v. Noel, we imposed a public reprimand instead of the suspension recommended by the board and commission because the conduct at issue preceded the discipline imposed for earlier misconduct. We concluded the prior sanction, a public reprimand, would have remained the same had we been aware then of the additional misconduct, and we
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209 therefore declined “to enhance Noel's sanction in the present case.” We reach the same conclusion here. Iowa S. Ct. Atty. Disc. Bd. v. Tindal, 949 N.W.2d 637, 644 (Iowa 2020). (emphasis added, internal citations omitted).
c. Grievance Commission Hearings in the age of COVID-19
i. Pursuant to Iowa Supreme Court Supervisory Order, Respondents in a Grievance Commission proceeding are entitled to an “in-person” hearing.
ii. March 26, 2020, Supervisory Order signed by Chief Justice Christensen:
The Court strives to protect the public and the due process rights of individuals over whom the boards and commissions have oversight. . . . Hearings set forth in Chapters 31, 34, 35, 26, 42, 46, and 47, shall be held telephonically or via video conference. This includes hearings that are currently scheduled. However, upon request of the respondent, Chapter 36 [Grievance Commission Rules of Procedure] hearings shall be postponed until such time as they can be held in person. (emphasis added).
iii. Grievance Commission hearings have been conducted with protections in place to prevent potential exposure to COVID-19 including social distancing requirements for all parties, witnesses, and panel member in addition to mask/shield requirements.
iv. It is good practice to file a “Written Request for an In-Person Hearing” with the Grievance Commission to preserve the rights of the Respondent.
d. See attached brief synopses of recent Iowa Supreme Court attorney disciplinary cases.
III. CONCLUSION AND PREDICTIONS
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210 CURRENT MEMBERS OF THE ATTORNEY DISCIPLINARY BOARD
Chairperson
Jane Rosien, Winterset
Attorney Members
Scott G. Buchanan, Algona
Karen J. Erger, Cedar Rapids
Jennifer Gerrish-Lampe, Waukee
Nicholas G. Pothitakis, Burlington
Lucas J. Richardson, Ames
Reyne L. See, Marshalltown
Mark C. Smith, Des Moines
Janece Valentine, Fort Dodge
Lay Members
Dr. Debbie Nanda McCartney, Des Moines
Tim McClimon, DeWitt
Reginald Roberts, Algona
Board Executive Officer
Tara van Brederode, Assistant Director for Attorney Discipline Office of Professional Regulation (http://www.iowacourtsonline.org/Advisory_Committees/Attorney_Disciplinary_Board/)
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211 CURRENT MEMBERS OF THE GRIEVANCE COMMISSION
Beatriz A. Mate-Kodjo, Des Moines Ralph W. Heninger, Davenport Yeshimebet Abebe, Waterloo Daniel Herting, Des Moines Susan M. Abernathy, Cedar Falls Brent Hinders, Des Moines Kristian E. Anderson, Newton Thomas D. Hobart, Iowa City Alex J. Anderson, Cedar Rapids Mary Howell Sirna, Ames Kelsey A. Beenken, Britt Cynthia D. Hucks, Ottumwa Jennifer Bennett Finn, Estherville Gregory Johnson, Fort Madison John W. Bernau, Manchester Lisa R. Jones, Lowden Matthew F. Berry, Clear Lake Elizabeth Kellner-Nelson, West DM Caroline K. Bettis. Des Moines Richard Kirkendall, Dubuque Tammi Blackstone, Des Moines Tiffany J. Kragnes, Fayette Natalia H. Blaskovich, Dubuque Jonathan E. Kramer, Des Moines Peter W. Blink, Newton Erin Lain, Des Moines Chad A. Boehlje, Pella Jenna K. Lain, Corydon Samuel H. Braland, Earlham Eric W. Lam, Cedar Rapids Lindsey R. Buchheit, Sergeant Bluff Melissa S. Larson, Greenfield Andrea H. Buckley, Sioux City James L. Lauer, Algona Janet E. Burkhead, Adel Christine Lebrón-Dykeman, Des Moines Julie J. Bussanmas, Erin E. Lee Schneider, Des Moines Kristi J. Busse, Spencer Ian A. McConeghey, Onawa Melody J. Butz, Center Point John McCormally, Des Moines Michael A. Carmoney, Des Moines John C. Miller, Burlington Elizabeth J. Cervantes, Davenport Ryan J. Mitchell, Ottumwa Stacie M. Codr, Waukee Richard H. Moeller, Sioux City Kellen Corbett, Waukee Michael Moeller, Clear Lake Elizabeth J. Craig, Iowa City Hilary Montalvo, Newton Matthew Dake, Cedar Rapids Amy S. Montgomery, Des Moines Jean Dickson, Davenport Carol Moser, Des Moines Tyler L. Eason, Adel Katherine Murphy, Glenwood Laura A. Eilers, Marshalltown Jon J. Narmi. Council Bluffs Jill Eimermann, Des Moines Loree Nelson, Des Moines Naeda E. Elliott, Council Bluffs Nellie O’Mara, Mason City Lisa M. Epp, Cedar Rapids Dennis Parmenter, Huxley David M. Erickson, Des Moines Julie Pottorff, Des Moines Katie A. Ervin Carlson, West Des Moines Maureen Quann, Dubuque John F. Fatino, Des Moines Katie L. Ranes, Waukee Mark D. Fisher, Cedar Rapids Jessica A. Reynolds, Ames Joseph Gamble, Des Moines Lilly Richardson-Severn, Council Bluffs Mark Gray, Ankeny Andrew J. Ritland, Ottumwa Jon E. Heisterkamp, Council Bluffs Diana L. Rolands, Osceola 9
212 Brent R. Ruther, Burlington Christopher B. Budzisz, Dyersville John M. Sandy. Spirit Lake Nellie Coltrain, Albia Jennifer Schwickerath, New Hampton Katie Davidson, Creston Susan C. Scieszinski, Centerville Jim DenAdel, Fort Madison Darin R. Slater, Mount Pleasant Jerry Droz, Fairfield Patrick Smith, Des Moines Trish Ellison, Cedar Rapids Shawn Smith, Ames Scott Flory, Hancock Melanie Summers Bauler, Emmetsburg Kelly Francois, Dubuque Ashley A. Tollakson, West Des Moines Robert Helscher, Washington Mary A. Triick, Des Moines Julie Hubbell, Cedar Rapids Tonya A. Trumm, Dubuque Julie Huisman, Ames Heidi D. Van Winkle, Burlington Todd Kale, Osceola C. Michelle Venable-Ridley, Sioux City Cynthia Keithley, Council Bluffs Mark L. Walk, Osage Flora M. Lee, Sioux City Ashley L. Walkup, Bloomfield Terrishane Mathews, Oelwein Thomas H. Walton, Des Moines Joy Mauskemo, Tama Molly Weber, Adel Kathy Maxwell. Iowa City Sharon Wegner, Des Moines Amy McClure Swearingen, Bettendorf Patrick White, Des Moines Carl McPherson, Des Moines. Brian J. Williams, Waterloo Justine M. Morton, West Des Moines Courtney T. Wilson, Davenport Marsha Park, Council Bluffs Gregory A. Witke, Des Moines Jane Rider, Clive Joseph W. Younker, Iowa City Denise Rudolph, Indianola Jennifer Zahradnik, Belle Plaine Jim Tiedje, Davenport Anita Allwood, Ankeny Elizabeth Todd, Des Moines Scott Arnburg, Des Moines DeNeitt VanDenBroeke, Spirit Lake Luke Behaunek, Norwalk Douglas VanDerVoort, Sioux City Kathrine A. Brown, Pella Nathan Wilson, Colo Miriam Brown Tyson, Waterloo E. John Wittneben, Estherville David Buck, Waterloo
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213 SNAPSHOT OF 2020 ATTORNEY DISCIPLINARY CASES
Iowa S. Ct. Atty. Disc. Bd. v. Said, 20-0797 (Iowa Jan. 8, 2020) • Board alleged Said failed to competently handle matters in immigration law. • Commission and Supreme Court noted the difficulties present in navigating criminal and immigration law. • Attorney had prior discipline and received a thirty-day suspension.
Iowa S. Ct. Atty. Disc. Bd. v. Rhinehart, 20-0824 (Iowa Jan. 8, 2020) • Attorney “personalized” the role of the district court in pleadings. • Allegations related to incivility in proceedings. Grievance Commission recommended a suspension. • Supreme Court reversed and dismissed the complaint, finding that the conduct did not amount to an ethical violation. • However, the special concurrence stated, “our dismissal of the disciplinary complaint against Rhinehart should not be interpreted as condoning his behavior. In addition to demanding that attorneys maintain ethical behavior as outlined in our rules of professional conduct, we also expect attorneys to behave with civility and professionalism.”
Iowa S. Ct. Atty. Disc. Bd. v. Akpan, 20-0187, 2020 WL 6811365 (Iowa Nov. 20, 2020) • Iowa licensed attorney practicing immigration law in Texas received a public reprimand for mishandling flat fee payments. • Iowa Supreme Court rules for the first time that video-conference testimony of complaining witness is impermissible under Grievance Commission rules granting Respondent right to counsel, to cross-examine, to be confronted by witnesses, and to present evidence. 36.17(5).
Iowa S. Ct. Atty. Disc. Bd. v. Kieffer-Garrison, 951 N.W.2d 29 (Iowa 2020) • Attorney failed to adequately consult with her client prior to signing their signature on court documents in a criminal defense matter. • Attorney had previous history of discipline including prior suspension. • License was suspended for one year.
Iowa S. Ct. Atty. Disc. Bd. v. Tindal, 949 N.W.2d 637 (Iowa 2020) • Tindal received default notices in sixteen different appeals.
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214 • The Supreme Court held, “Lawyers shouldn’t use default notices from the supreme court clerk as a tickler system for appellate briefing deadlines.” • Tindal cured the default from each and every notice. • Most of the default notices occurred prior to previous attorney discipline. • The Court held that if these matters had been presented previously, Tindal still would not have received a greater sanction than the public reprimand that was issued. • Based on this reasoning, Tindal was received a public reprimand.
Iowa S. Ct. Atty. Disc. Bd. v. Marzen, 949 N.W.2d 229 (Iowa 2020) • Marzen knowingly provided clients with inaccurate tax returns. • Marzen also transferred the representation of an estate to another attorney without the client’s consent. • Attorney suspended for 30 days.
Iowa S. Ct. Atty. Disc. Bd. v. Beauvais, 948 N.W.2d 505 (Iowa 2020) • Beauvis represented a Plaintiff in a personal injury action. • Beauvis informed opposing counsel and the Court that his client had accepted a settlement offer, when his client had in fact rejected the offer. • Beauvis then pressured his client into accepting the offer using inaccurate information. • Attorney suspended for three-months.
Iowa S. Ct. Atty. Disc. Bd. v. Watkins, 944 N.W.2d 881 (Iowa 2020) • Watkins was elected as Van Buren County Attorney. • Ethical complaint was filed against Watkins related to sexual harassment allegations. • The Supreme Court found Watkins had engaged in sexual harassment in violation rule 8.4(g) and suspended his license for six months.
Iowa S. Ct. Atty. Disc. Bd. v. Kozlik, 943 N.W.2d 589 (Iowa 2020) • Kozlik is an Omaha attorney that was licensed and practiced in both Iowa and Nebraska. • Kozlik was appointed administrator of an estate. Kozlik wrote a total of 12 checks on the estate’s account made payable to himself without any prior court authorization. The checks totaled $39,350. • Iowa Supreme Court held that Kozlik converted funds for which he had no colorable future claim. His license was revoked.
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215 Iowa S. Ct. Atty. Disc. Bd. v. Meyer, 944 N.W.2d 61 (Iowa 2020) • Attorney worked as a contract attorney with the Iowa State Public Defender’s office. • Meyer entered into an Alford plea regarding criminal charges for billing practices. Meyer self-reported to the Iowa Attorney Disciplinary Board. • Meyer’s license to practice law was suspended for one year for violating ethical rules related to dishonesty and collecting unreasonable fees.
Iowa S. Ct. Atty. Disc. Bd. v. Goedken, 939 N.W.2d 97 (Iowa 2020) • Ethical complaint was filed against attorney after several delinquencies in a probate matter. • Attorney was in violation of ethical rules related to neglect of client matters. • A 90-day suspension was issued.
Iowa S. Ct. Atty. Disc. Bd. v. Bergmann, 938 N.W.2d 16 (Iowa 2020) • Attorney was charged with neglecting several client matters. • Grievance Commission recommended a public reprimand and 12-months of probation with several requirements for the attorney during probation. • The Supreme Court upheld the public reprimand but rejected the probation as there are no rules or other authority that would permit probation for an attorney.
Iowa S. Ct. Atty. Disc. Bd. v. Hier, 937 N.W.2d 309 (Iowa 2020) • The Supreme Court noted that the matter was “hotly contested, emotional family law matter.” The Supreme Court further noted “We approach with caution ethics complaints initiated by a litigation adversary. • Attorney placed a check into her operating account that should have been placed in trust after a controversy between opposing parties arose regarding the funds. • Sanctions are increased if the attorney has a history of prior discipline. Attorney was suspended for thirty days.
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216 Section 2
D.
Medical Malpractice Update
Jeff W. Wright, Sioux City
217 MEDICAL MALPRACTICE UPDATE Jeff W. Wright Heidman Law Firm, P.L.L.C. Sioux City, Iowa
Iowa Code § 147.140 Certificates of Merit I. Iowa Code §§ 147.139 and 147.140 create new obligation for plaintiffs and defendants
A. Traps for the unwary adopted for stated purpose of protecting healthcare providers from frivolous claims by requiring plaintiffs to show early on that they have a colorable claim.
B. Does not replace § 668.11; adds to it.
C. Applicable in all cases where the cause of action arose after July 1, 2017, which obviously translates to all new cases filed in the State of Iowa. II. Elements required by § 147.140(1)(a)
A. Required in any action:
1. For personal injury or wrongful death; 2. Against a health care provider; 3. Based upon alleged negligence in the practice of their profession, occupation, or patient care; 4. Where expert testimony is required to establish a prima facie case. § Applies even to cases where expert testimony would not be required to establish breach, as expert testimony would still be needed as to causation. Schmitt v. Floyd Valley Health Care, Plymouth County, Case No. LACV039727 (p. 9)
B. The certificate must be signed under oath and contain the following:
1. A statement of familiarity with the standard of care. 2. A statement that standard of care was breached by the defendant. §147.140(1)(b)
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218 C. The certificate of merit must be served within 60 days of defendant’s answer and must be in the form of a signed affidavit by an expert witness, alleging a breach of the standard of care.
D. The expert must meet standards set forth in § 147.139 which include:
1. Holding a license to practice in the same or substantially similar field as the defendant, being in good standing with their state(s) of licensure, and not having had their license revoked or suspended within the five years preceding the act or omission of the defendant alleged to be negligent. 2. Actively practiced in the same or substantially similar field as the defendant or was a qualified instructor at an accredited university in the same field as the defendant for the five years preceding the act or omission alleged to be negligent. 3. Where the defendant is board-certified in a specialty, the expert must be certified by the same or a substantially similar recognized board. 4. The expert must be licensed as a physician, osteopathic physician, or podiatric physician if the defendant is so licensed. 5. Surgery and radiology are not “substantially similar” specialties such that a board-certified surgeon does not meet the expert standards of § 147.139 when filing a certificate of merit alleging a board-certified radiologist breached the standard of care. Wood v. Montgomery County Memorial Hospital et al., Montgomery County, Case No. LACV022000 (p. 7).
E. A separate certificate shall be served regarding each defendant named in plaintiff’s petition. § 147.140(1)(c); Struck v. Mercy Medical Center et al., Woodbury County, Case No. LACV190500 (p. 26)
F. The plaintiff must also comply with the requirements of § 668.11, governing the certification and disclosure of experts. § 147.140(3)
1. The Certificate of Merit pursuant to § 147.140 must be filed within 60 days of defendant’s answer, unlike the disclosure and certification of experts under § 668.11, for which a plaintiff has 180 days from the defendant’s answer to comply. 2. The purpose for the affidavit is merely to show plaintiff has a colorable claim. The certificate of merit serves to weed out frivolous cases early in the proceedings. McHugh v. Tri-State Specialists, LLP et al., Woodbury County, Case No. LACV187705 (p. 5)
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219 G. The 60-day period may be extended either by party agreement or by the court for good cause and in response to a motion filed by the plaintiff prior to expiration of the 60 days. § 147.140(4).
1. The “and” is important. In the absence of party agreement, the court must find good cause to extend the period, and the motion to extend the period must be filed before the expiration of the 60-day period. Struck (p. 28); McHugh (p. 3)
H. Plaintiff acting pro se “shall be bound by those provisions as if represented by an attorney.” § 147.140(5).
1. Courts enforce this section of the statute, providing no leeway to pro se plaintiffs who fail to follow § 147.140 requirements. See Schmitt.
III. Interplay between § 147.140 and § 668.11
A. Iowa Code § 668.11 governs expert designations in professional liability cases
1. Iowa legislature has recognized its continued application – Iowa Code § 147.140(2). 2. It establishes the statutory guidelines by which parties in a professional malpractice claim must designate experts. (a) Plaintiffs – 180 after defendant’s answer (b) Defendants – 90 days after plaintiff’s designation
B. Timeline Difference.
1. Certificate of Merit – 60 days after each defendant’s answer. 2. Designation – 180 days after defendant’s answer (set in the Discovery Plan).
C. Good Cause.
1. § 147.140.
(a) The parties by agreement or the Court for good cause shown and in response to a motion filed prior to the expiration of [60 days post-answer] may provide for extensions of the time limits. (b) Statutory example given is the inability to timely obtain the plaintiff’s medical records.
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220 2. § 668.11.
(a) The 180-day deadline applies unless the Court for good cause not ex parte extends the time for disclosure. (b) Substantial compliance contemplated here, but far less so under Certificate of Merit statutes. (c) Substantial compliance contemplates “compliance in respect to essential matters necessary to assure the reasonable objectives of the statute. Nedved v. Welch, 585 N.W.2d 238, 240 (Iowa 1998).
(1) Objectives: (i) Providing certainty about the identity of experts. (ii) Preventing last minute dismissals when an expert cannot be found. (iii) Requiring plaintiffs to have their proof prepared at an early stage in the litigation in order to protect professionals from having to defend against frivolous lawsuits. Nedved, 585 N.W.2d at 240.
(d) Good cause for § 668.11 is drawn from that used for default judgments.
(1) “sound, effective, truthful reason, something more than an excuse, a plea, apology, extenuation, or some justification for the resulting effect. The movant must show his failure to defend was not due to his negligence or want of ordinary care or attention, or to his carelessness or inattention. He must show affirmatively he did intend to defend and took steps to do so, but because of some misunderstanding, accident, mistake or excusable neglect failed to do so. Defaults will not be vacated where the movant has ignored plain mandates in the rules with ample opportunity to abide by them.” Donavon v. State, 445 N.W.2d 763, 765-66 (Iowa 1989).
(e) Good cause factors for § 668.11 include:
(1) The seriousness of the deviation from the statutory deadline (i) Even three days has been found to be too long. (2) Prejudice to defendant (i) Example = having to designate before plaintiff designates (ii) Prejudice to defendant is not essential. (3) Defense counsel’s actions. (i) Did defendant send discovery? (ii) Did defendant simply lay in weeds? See Tamayo v. Debrah, 924 N.W.2d 873 (Table), 2018 WL 4922993 at *2 (Iowa Ct. App.).
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221 (4) Plaintiff must show “more than an excuse, a plea, apology, extenuation, or some justification for the resulting effect, and simple oversight by plaintiff’s counsel is insufficient. Donovan, 445 N.W.2d at 765-66; Tamayo, 2018 WL 4922993, at *2.
D. §147.140 and § 668.11 have distinct purposes and requirements:
1. §147.140 does not require disclosure of all of the same information that must be disclosed to comply with § 668.11 – a party’s § 147.140 certificate of merit affidavit need not necessarily be completed by the expert whom the party eventually designates as its expert. 2. However, the certificate should indicate whether the plaintiff intends to eventually designate its certificate of merit affiant as an expert witness.
IV. “Shall” taken literally by courts - § 147.140(6)
A. Failing to substantially comply with the certificate of merit requirements shall result, upon motion by defendant, in dismissal with prejudice.
B. “Shall” means SHALL
1. Though courts have recognized that dismissal with prejudice is a harsh result, the language of § 147.140 compels the remedy. Sobolik (p. 3); McHugh (p. 6). 2. “Shall” imposes a duty on the court, pursuant to § 4.1(30), leaving the court no discretion. McHugh (p. 6). 3. Even where plaintiff is proceeding pro se, the mandatory dismissal language of § 147.140 denies the court discretion and it must dismiss claims for which expert testimony is needed to establish a prima facie case. Schmitt (p. 17).
C. Substantial compliance
1. Need not be literal compliance but must include the essential matter necessary to achieve the objective of the statute. Schmitt (p. 13) 2. At the very least, courts have found this requires the statement of the expert to be (a) in affidavit form; (b) contain the pertinent standard of care; (c) allege breach of the standard of care; and (d) certify that the expert is familiar with the standard of care. Schmitt (p. 16). 3. Some courts, perhaps more forgivingly, have found that discovery responses within the 60-day window could lead to a “reasonable argument” that substantial compliance has occurred, as the defendant would be
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222 presented with sufficient substance showing the claim is not frivolous. McHugh (p. 5). 4. Some courts have trended the other way, hinting at requiring strict compliance, as is the rule in other states with similar certificate of merit statutes, as opposed to mere substantial compliance. Sobolik v. Mercy Health Services et al., Chickasaw County, Case No. LACV004052 (p. 3). 5. A plaintiff fails to substantially comply with § 147.140 when they meet the procedural requirement of submitting a timely certificate of merit but fail substantively because their expert failed to meet the qualification standards of the Code.
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223 2/22/21
Medical Malpractice Update Iowa Code § 147.140 Certificates of Merit
Jeff Wright Heidman Law Firm, P.L.L.C. February 25, 2021 Iowa Academy of Trial Lawyers
1
When Required
• Required in any action: • (1) For personal injury or wrongful death; • (2) Against a health care provider; • (3) Based upon alleged negligence in the practice of their profession, occupation, or patient care; • (4) Where expert testimony is required to establish a prima facie case. • The certificate of merit must be served within 60 days of defendant’s answer and must be in the form of a signed affidavit by an expert witness, alleging a breach of the standard of care.
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224 1 2/22/21
Required Content
• The expert must meet standards set forth in § 147.139 • This includes the requirement that the expert’s medical expertise must be “substantially similar” to that of the Defendant (e.g. surgeon versus radiologist). • The certificate must be signed under oath and contain: • A statement of familiarity with the standard of care. • A statement that standard of care was breached by the defendant. • A separate certificate shall be served regarding each defendant named in plaintiff’s petition.
3
Strictly Interpreted
• The 60-day period may only be extended either by party agreement or by the court for good cause and in response to a motion filed by the plaintiff prior to expiration of the 60 days. • Plaintiff acting pro se “shall be bound by those provisions as if represented by an attorney.” • The purpose for the affidavit is to show plaintiff has a colorable claim. The certificate of merit serves to weed out frivolous cases early in the proceedings.
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225 2 2/22/21
Interplay between § 147.140 and § 668.11
• Both § 668.11 and § 147.140 apply to medical malpractice actions (§ 147.140 does not eliminate the requirements of § 668.11). Iowa Code § 147.140(2). • Timeline difference • § 668.11 Designation – 180 days after defendant’s answer. • § 147.140 Certificate of Merit – 60 days after each defendant’s answer.
5
Interplay between § 147.140 and § 668.11 (cont’d) • Good cause • § 147.140 Certificate of Merit – Extending sixty-day deadline requires good cause and a motion filed prior to the expiration of the 60 days. • § 668.11 “substantial compliance” standard of compliance– compliance in respect to essential matters necessary to assure the reasonable objectives of the statute–has been applied to § 147.140 cases. • A result of the novelty of § 147.140 and the lack of appellate courts decisions interpreting it.
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226 3 2/22/21
Interplay between § 147.140 and § 668.11 (cont’d) • Good cause under § 668.11 • Drawn from standard used for vacating default judgments. • § 668.11 provides certainty about experts which prevents last- minute dismissals and protects against frivolous lawsuits. • Factors in determining whether good cause exists: • The seriousness of the deviation from the statutory deadline • Prejudice to the defendant • Defense counsel’s actions • Good cause must be “more than an excuse, a plea, apology, extenuation, or some justification.” A “simple oversight by plaintiff’s counsel is insufficient.”
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Interplay between § 147.140 and § 668.11 (cont’d) Distinct Purposes and Requirements of § 147.140 and § 668.11 • §147.140 and § 668.11 require the disclosure of different information: • § 147.140 certificate of merit affidavit need not necessarily be completed by the expert whom the party eventually designates as its expert. • However, the certificate should indicate whether the plaintiff intends to eventually designate its certificate of merit affiant as an expert witness.
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227 4 2/22/21
Shall means SHALL
• Failing to substantially comply with the certificate of merit requirements shall result, upon motion by defendant, in dismissal with prejudice. • Even if dismissal with prejudice is a harsh result, “shall” imposes a duty on the court, leaving it no discretion. • “Substantial compliance” is a fairly high bar, requiring inclusion of the essential matter necessary to achieve the objective of the certificate of merit.
9
Unsuccessful District Court Arguments by Plaintiffs • Inapplicable because acts or omissions arose before certificate of merit requirement was enacted on July 1, 2017, despite Plaintiff’s death occurring after July 1. • The 60-day clock does not start until every defendant has filed an answer. The court, instead, found the plaintiff must serve a separate certificate of merit on each particular defendant within 60 days of their Answer. • Good cause and a request for extension within the 60-day period is required to extend the period—a mere showing of good cause by the Plaintiff is insufficient.
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228 5 2/22/21
Unsuccessful District Court Arguments by Plaintiffs (cont’d) • The court rejected the argument that a certificate of merit is unnecessary for claims which do not require expert testimony to prove breach, because expert testimony is still needed as to causation. • Submitting a certificate of merit 118 days after defendant’s Answer, 58 days after the 60-day deadline had passed, was not “substantial compliance.” • Surgery and radiology are not a “substantially similar” expertise such that a surgeon may satisfy the certificate of merit requirement by alleging a radiologist breached the standard of care.
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229 6 Section 2
E.
Admissibility of Medical Expenses
Henry J. Bevel, III, Waterloo
230 ACADEMY OF TRIAL LAWYERS The 59th Annual Seminar Admissibility of Medical Expenses Henry J. Bevel III
A. Introduction. In personal injury actions, plaintiffs may be entitled to recover damages for past pain and suffering, future pain and suffering, past loss of function of the body, future loss of function of the body, lost wages, loss of earning capacity, past medical expenses and future medical expenses. Since September of 2004, one of the first questions asked in discussing past medical expenses and in evaluating claims, has been “What is the PEXA number?” PEXA refers to the case of Pexa v. Auto-Owners Insurance Company. In discussing the admissibility of medical expenses, it is helpful to review Pexa.
B. Pexa v. Auto-Owners Insurance Company, 686 N.W.2d 150 (Iowa 2004). Pexa v. Auto-Owners Insurance Company was an action for underinsured motorist benefits. Raymond Pexa, who was 77 years old at the time of the accident giving rise to the lawsuit, sustained injuries that included confusion, bruises to his forehead, a small laceration on his nose, and a nondisplaced pelvic fracture. Pexa was hospitalized for six days, followed by 28 days in a skilled nursing facility after the accident. The charges for the medical treatment provided to Pexa totaled $41,544. Pexa’s health insurer and Medicare paid $15,950.29 to satisfy the medical charges. The remaining amount of the medical charges were written off by the hospital and the medical providers.
At trial, Auto-Owners filed a motion in limine, which included a request for the trial court to prohibit evidence of the charged amount of the medical expenses. In ruling on this portion of Auto-Owner’s motion in limine, the trial court directed that the amount of the medical bills could be disclosed to the jury, but the plaintiff’s recovery would be limited to the amount actually paid to the medical providers.
The special verdict form submitted in the case required the jury to make two factual findings. First, whether the plaintiff had proved his damages were proximately caused by the accident. Second, the amount of the damages for five separate categories, including past medical expenses.
The trial court’s jury instruction for past medical expenses instructed the jury that in determining the amount of Pexa’s damages, it should consider, among other things,
[t]he reasonable value of necessary hospital charges, doctor charges and prescriptions from the date of injury to the present time. It is stipulated that the total amount of these bills is $41,544.34 and that, due to adjustments, the amount the plaintiff may recover for this item is $15,950.39.
Pexa, 686 N.W.2d 150 (Iowa 2004).
231 Before submitting the special verdict form to the jury, the trial court entered $15,950.39 on the line provided for past medical expenses.
The amount of the verdict returned by the jury was less than the amount of the tortfeasor’s automobile liability policy’s limits and the court entered judgment in favor of Auto-Owners.
One of the grounds urged by the plaintiff on appeal was that the trial court erred in limiting the plaintiff’s maximum recovery for past medical expenses to the amount actually paid for medical care.
In addressing the issue of whether the trial court’s rulings and instructions improperly limited the evidence and incorrectly calculated the loss, the Supreme Court examined the rules governing the measurement and proof of an injured person’s medical expenses. The items noted by the Court included the following:
1. An injured plaintiff may recover only the reasonable and necessary costs of medical care. Therefore, the plaintiff has the burden to prove the reasonable value of the services rendered.
2. The reasonable value of medical services can be shown by evidence of the amount paid for such services or through the testimony of a qualified expert witness.”
3. The amount charged, standing alone, is not evidence of the reasonable and fair value of the services rendered.
4. The billed amount is relevant only if the figure was paid or an expert witness has testified to the reasonableness of the charges.
Pexa at 156.
The Supreme Court of Iowa agreed with Pexa that the trial court erred in limiting Pexa’s proof of the reasonable value of Pexa’s past medical expenses to the amount paid to and accepted by the medical providers. However, the Supreme Court concluded that this was harmless error because even if Pexa had been awarded the total of the charged medical expenses, the total of his compensatory damages would have been less than the amount Pexa had recovered from the tortfeasor and he would not have been entitled to recover underinsured motorist benefits.
It should be noted that the Supreme Court of Iowa rejected Auto-Owner’s argument that an injured party’s recovery for past medical expenses should be limited to the amount actually paid for those medical services. The opinion states, “[t]his position is contrary to the longstanding principle that such damages are measured by the reasonable value of medical services, and the amount paid is but one form of probative evidence on this issue. In addition, this argument fails to account for the possibility that medical charges may be
2 232 compromised for reasons other than the unreasonableness of the billed amount.” Pexa, 686 N.W.2d at 157.
C. Iowa Code §622.4. Medical Expenses.
Effective July 1, 2021, Iowa Code §622.4 provides:
Evidence offered to prove past medical expenses shall be limited to evidence of the amounts actually paid to satisfy the bills that have been satisfied, regardless of the source of payment, and evidence of the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied. Evidence of the amounts actually necessary to satisfy the bills that have been incurred shall not exceed the amount by which the bills could be satisfied by the claimant’s health insurance, regardless of whether such health insurance is used or will be used to satisfy the bills. This section does not impose upon any party an affirmative duty to seek a reduction in billed charges to which the party is not contractually entitled.
Note: The “regardless of the source of payment” language in §622.4 appears to abrogate the prohibition of the introduction of collateral payments pursuant “to a state or federal program or from access of the claimant or the members of the claimant’s immediate family” under Iowa Code 668.14.
D. Iowa Code §668.14. Evidence of Previous Payment or Future Right of Payment.
Iowa Code §668.14 provides:
1. In an action brought pursuant to this chapter seeking damages for personal injury, the court shall permit evidence and argument as to the previous payment or future right of payment of actual economic losses incurred or to be incurred as a result of the personal injury for necessary medical care, rehabilitation services, and custodial care except to the extent that the previous payment or future right of payment is pursuant to a state or federal program or from assets of the claimant or the members of the claimant’s immediate family.
2. If evidence and argument regarding previous payments or future rights of payment is permitted pursuant to subsection 1, the court shall also permit evidence and argument as to the costs to the claimant of procuring the previous payments or future rights of payment and as to any existing rights of indemnification or subrogation relating to the previous payments or future rights of payment.
3 233
3. If evidence or argument is permitted pursuant to subsection 1 or 2, the court shall, unless otherwise agreed to by all parties, instruct the jury to answer special interrogatories or, if there is no jury, shall make findings indicating the effect of such evidence or argument on the verdict.
4. This section does not apply to actions governed by section 147.136. [Scope of recovery - medical malpractice actions].
E. Iowa Code §668.14A. Recoverable Damages for Medical Expenses.
Iowa Code §668.14A provides:
1. In an action brought to recover damages for personal injury, the damages that may be recovered by a claimant for the reasonable and necessary cost or value of medical care rendered shall not exceed the sum of the amounts actually paid by or on behalf of the injured person to the health care providers who rendered treatment and any amounts actually necessary to satisfy the medical care charges that have been incurred but not yet satisfied.
2. This section does not apply to actions governed by section 147.136.
F. Medical Expenses.
Medical expenses are the reasonable cost of necessary hospital charges, doctor charges, prescriptions, and other medical services.
G. Foster v. Schares, 766 N.W.2d 649 (Table), 2009 WL 606232 (Iowa Ct. App.).
Foster v. Schares, an unreported case from the Court of Appeals of Iowa, involved the defendant’s appeal of a trial court’s order granting the plaintiff a new trial on the issue of damages. In this case, the plaintiff cross appealed the order denying the plaintiff’s motion for a new trial on all issues.
Foster arose from a pedestrian / motor vehicle collision that occurred on the campus of Hawkeye Community College. At trial, the plaintiff testified that she still had pain in numerous areas of her body that affected her daily activities and work activities. Her family physician opined that her pain was permanent in nature, that the plaintiff would require medical care and treatment for the rest of her life, and would have pain in her neck, left shoulder, rib cage, hip, thigh and right ankle areas. Physicians also testified that the charges for the plaintiff’s medical treatment were fair and reasonable. The defendant did not call any medical experts at the trial. The parties stipulated that the charges for the medical bills for the plaintiff’s treatment totaled $23,368.86 and that
4 234 $14,943.54 was the amount actually owed for the charges. The parties did not stipulate to causation.
In Foster, the jury assigned 49% of the fault to the plaintiff, awarded the plaintiff $10,000.00 for past medical expenses and $1,500.00 for past pain and suffering. The jury did not award the plaintiff damages for future medical expenses or return a verdict in favor of the plaintiff for any other damages. The damages were reduced for comparative fault, and judgment was entered in favor of the plaintiff for $5,865.00.
In affirming the trial court’s grant of a new trial on the issue of damages, the Court of Appeals of Iowa stated:
Upon our review, we cannot say Foster’s medical testimony was “so contrary to natural laws, inherently improbable or unreasonable, opposed to common knowledge, inconsistent with other circumstances established in the evidence, or contradictory within itself’ ” so as to be the subject of rejection by the jury. Kaiser v. Stathas, 263 N.W.2d 522, 526 (Iowa 1978). While it is true a jury is not absolutely bound by the testimony of experts, the experts’ opinions are intended as an aid to the jury, and the jury may not arbitrarily, without cause, disregard them. See Larew v. Iowa State Highway Comm’n, 254 Iowa 1089, 1093, 120 N.W.2d 464, 464 (1963).
Foster, 2009 WL at *4.
H. Penney v. Praxair, Inc., 116 F.3d 330 (8th Cir. 1997).
Penney arose from a motor vehicle accident that occurred in a construction zone. Plaintiff, Leonard Penney, was sleeping in the front passenger seat of a car when it was struck by a loaded tanker traveling at five to ten miles per hour. Mr. Penney claimed that he continued to suffer from headaches, sore neck, ringing in his ears, dizziness, vertigo and other assorted problems. This case was tried in the United States District Court for the District of South Dakota under diversity jurisdiction. The accident giving rise to the lawsuit occurred in Iowa, and Iowa law was applied. The jury returned a verdict awarding the plaintiffs $14,602.00 for past medical expenses and $20,000.00 for future medical expenses. The jury awarded no damages for loss of function or for pain and suffering. The plaintiffs appealed the trial court’s denial of a motion for new trial and the exclusion of evidence of Leonard Penney’s PET scan. Defendant, Prexair, Inc., cross appealed the district court’s denial of judgment as a matter of law as to future medical expenses. The defendant claimed there was insufficient evidence in the record to support an award for future medical expenses.
In affirming the trial court’s denial of the motion for judgment as a matter of law on the award of future medical expenses, the Eighth Circuit noted that the jury was presented with evidence of Leonard Penney’s need for additional medical attention. This evidence
5 235 was in the form of testimony from Mr. Penney and Ms. Penney that Leonard Penney continued to suffer symptoms from the accident and that they intended to continue seeking treatment for his pain, in spite of their previous lack of success. Additionally, several of the plaintiff’s doctors testified that they would require medication and treatment in the future.
In finding the record contained sufficient evidence to sustain the jury’s award of future medical expenses, the court stated, “In determining the amount of future damages, the jury was presented with itemized bills of past medical expenses and instructed to consider the reasonably necessary medical expenses to be incurred in the future. From this evidence, the jury could reasonably estimate the cost of future medical expenses.” Penney, 116 F.3d at 334.
I. Nesbit v. Myers, 576 N.W.2d 613 (Iowa Ct. App. 1998).
This case arises from a motor vehicle accident that occurred when a car driven by Cara Nesbit was rear ended by a truck owned by Wal-Mart and driven by William Myers. This accident occurred on December 6, 1994. Cara Nesbit received medical treatment between December 1994 and April 1995. She received no medical treatment after March 31, 1995. The plaintiff’s past medical expenses totaled $873.00. The plaintiff claimed neck injuries which continued at the time of the trial which occurred in August 1996.
Nesbit’s treating physician testified that the December 1994 accident was the cause of her injuries and that his charges were fair and reasonable. This physician also opined that based on the plaintiff’s continuing complaint of discomfort or dysfunction of the neck since March 1995, it was his opinion that she could expect to have a similar pattern of discomfort for the next 18 months, and in all probability it would continue in the future. The physician stated that if the plaintiff experienced discomfort, he would recommend future treatment of home therapies of exercise and ice or heat and over-the-counter anti- inflammatory medications. The physician also testified that if the plaintiff’s symptoms lasted two to three days, plaintiff might require professional intervention to get the cycle stopped and suggested possible chiropractic treatment or an orthopedic surgical specialist. There was no opinion that any such treatments would be necessary and there was “absolutely no evidence of the cost of any anticipated treatments.” At the close of the case, defendants moved for directed verdict on future medical expenses and also objected to the submission of future medical expenses to the jury. The motion for directed verdict was denied, as was the objection to the submission of future medical expenses to the jury.
The jury returned a verdict awarding the plaintiff a total of $25,845.95. This amount included $10,000.00 for future medical expenses.
In affirming the trial court’s denial of the motion for directed verdict, the Court of Appeals of Iowa stated that “[w]hile a plaintiff does not necessarily have to accurately determine the cost of future medical expenses, there should be one or more qualified witnesses giving such an opinion on which a jury may reasonably fix an allowance.”
6 236 Nesbit, 576 N.W.2d at 614 (citation omitted). The court of appeals held that the medical evidence in this case was sufficient enough to support a finding the plaintiff would have future problems and that these problems could be treated with over-the-counter remedies. The court of appeals held that the cost of over-the-counter remedies is a fact within the knowledge of the lay juror and a jury can fix an allowance for the future expenses of over- the-counter remedies without specific testimony to their cost.
Note that the defendants’ claim that there was not substantial evidence to support an award in the amount of $10,000.00 was not preserved for appeal, as the defendants did not file a motion for judgment notwithstanding the verdict.
HJB/kaf
7 237 Section 2
F.
Legislative Update
James W. Carney, Des Moines
238 2021
IOWA ACADEMY OF TRIAL LAWYERS SEMINAR
Legislation of Interest to Trial Lawyers
February 25, 2021
By: James W. Carney Carney & Appleby, P.L.C. 303 Locust Street, Suite 400 Des Moines, Iowa 50309 Phone: 515-282-6803 Fax: 515-282-4700 e-mail: [email protected]
239 TABLE OF CONTENTS
1. Lawyer/Legislators 17 lawyers: 11 in House/6 in Senate
2. Legislative Timetable
3. ISBA 2021 Affirmative Legislative Program
4. Medical Malpractice: a. Cunningham Group Article b. Iowa Med Mal Rates Chart c. Iowa Med Mal Filings in 2020 d. Medical Liability Monitor Chart e. Iowa Insurance Companies Chart
5. Statutory Modifications to Iowa Tort Law 1982 – 2020
6. Legislation of Interest to trial attorneys
240 2021 Legislative Session Lawyer-Legislators
House:
HD85 D Rep. Christina Bohannan HD25 R Rep. Stan Gustafson HD79 R Rep. Dustin Hite HD22 R Rep. Jon Jacobsen HD2 R Rep. Megan Jones HD30 R Rep. Brian Lohse HD33 D Rep. Brian Meyer HD41 D Rep. Jo Oldson HD31 D Rep. Rick Olson HD52 D Rep. Todd Prichard HD98 D Rep. Mary Wolfe
Senate:
SD16 D Senator Nate Boulton SD3 R Senator Jim Carlin SD33 D Senator Rob Hogg SD13 R Senator Julian Garrett SD1 R Senator Zach Whiting SD19 R Senator Jack Whitver
Senate Judiciary Committee Chair: Brad Zaun House Judiciary Committee Chair: Steven Holt
Justice Appropriations Subcommittee Chair: Julian Garrett (Senate) Justice Appropriations Subcommittee Chair: Gary Worthan (House)
241 89th Iowa General Assembly 2021 IOWA LEGISLATIVE SESSION TIMETABLE*
Note: This Session Timetable is subject to change *See SCR 5, SR 3, and HR 11 (2019) ______JANUARY 11 First day of session (Iowa Code Sec. 2.1) ______FEBRUARY 12 Final day for individual Senator and Representative requests for bill and joint (Friday of the 5th week) resolution drafts to the Legislative Services Agency (Senate Rule 27 and House Rule 29) ______MARCH 5 Final date for Senate bills and joint resolutions to be reported out of Senate (Friday of the 8th week)** Committees and House bills and joint resolutions out of House committees (Joint Rule 20) ______MARCH 15 - 19 Senate considers only Senate bills, joint resolutions, and unfinished business (10th week) House considers only House bills, joint resolutions, and unfinished business (Joint Rule 20) ______MARCH 22 - APRIL 2 Debate not limited by rule (11th and 12th weeks) ______APRIL 2 Final date for Senate bills and joint resolutions to be reported out of House (Friday of the 12th week)** committees and House bills and joint resolutions out of Senate committees (Joint Rule 20) ______APRIL 5 - 9 Senate considers only House bills, joint resolutions, and unfinished business (13th week) House considers only Senate bills, joint resolutions, and unfinished business (Joint Rule 20) ______APRIL 12 Only the following bills and resolutions are eligible for consideration: (Joint Rule 20) (Beginning of the 14th week) ▪ Bills passed by both Houses ▪ Appropriations Bills ▪ Ways and Means Bills ▪ Government Oversight Bills ▪ Legalizing Acts ▪ Administrative Rules Review Committee Bills ▪ Committee Bills related to delayed or suspended Administrative Rules [Iowa Code Sec. 17A.8(9)] ▪ Bills co-sponsored by Majority and Minority Leaders of one House ▪ Conference Committee Reports ▪ Companion Bills sponsored by Senate and House Majority Leaders ▪ Concurrent or Simple Resolutions ▪ Joint Resolutions nullifying Administrative Rules ▪ Bills on the Veto Calendar (Joint Rule 23) ▪ Unfinished Business ______
APRIL 12 Amendments need not be filed on the day preceding floor debate (Beginning of the 14th week) (House Rule 31.8) ______APRIL 30 110th calendar day of the session [Per diem expenses end - Iowa Code Sec. 2.10(1)]
**The March 5 and April 2 committee deadlines do not apply to Appropriations Bills, Ways and Means Bills, Government Oversight Bills, Legalizing Acts, Administrative Rules Review Committee Bills, Committee Bills related to delayed or suspended Administrative Rules [Iowa Code Sec. 17A.8(9)], Bills co-sponsored by Majority and Minority Leaders of one House, Conference Committee Reports, Companion Bills sponsored by the Majority Leaders of both Houses after consultation with the respective Minority Leaders, Concurrent or242 Simple Resolutions, and Joint Resolutions nullifying Administrative Rules. Legislative Information Office: 07/28/2020 IOWA STATE BAR ASSOCIATION 2021 Affirmative Legislative Program
Updated 2/22/2021 Bill Subject Bill Description Bill Status No. HF 360/ Probate & Trust Law Iowa Code §633.31 is currently being applied House: Ways & Means SF 244 inconsistently throughout the state. There are now Subcommittee Calculation of Probate several district court cases declaring the clerks in at Scheduled for 2/23/21. Court Costs least six counties to be calculating court fees inappropriately. The bill addresses how the clerks of probate court determines and collects charges in Senate: Ways & Means connection with services provided in probate Subcommittee matters. Excludes from the determination of court Recommended Passage fees property over which the court lacks probate 2/17/21. jurisdiction and for which the clerk renders no services. HSB 27/ Probate & Trust Law Proposed changes to HF 610 to “fix” technical House: Subcommittee SSB errors and substantive issues with the legislation Assigned 1007 Guardianship & that passed during the 2019 Legislative Session. Conservatorship This bill only addresses requested changes in Iowa Senate: Subcommittee Update Code 633. Assigned
HSB 14/ Probate & Trust Law Proposed changes to HF 591 to “fix” technical House: Subcommittee SSB Family Law errors and substantive issues with the legislation recommended passage 1035 that passed during the 2019 Legislative Session. 1/13/21. Guardianship & This bill only relates to amendments to Iowa Code Conservatorship 232D, or the Iowa Minor Guardianship Act. Senate: Subcommittee Update Specially, this bill makes clarifications to the role Assigned of “court visitor”, background checks, court confidentiality, and when and how the Court should be notified with regard to minor conservatorships. SF 173 Probate & Trust Law Amends Iowa Code section 633A.4604 House: Unanimously (Certification of Trusts) to require these passed the House Floor Certification of Trusts certifications to include names of all currently 93-0 on 2/16/21. acting trustees, state how many trustees must agree if there is more than one trustee, and allow signers Senate: Unanimously to certify these documents (no longer will signature passed Senate Floor, notarization be required). 46-0 on 2/3/21.
Amends Iowa Code section 633A.4703 (General Awaiting Governor’s order of abatement) to make trust code provisions Signature for abating shares of surviving spouses who don’t take elective shares of the trust be the same as the probate code provisions for abating shares of surviving spouses who don’t take elective shares under the decedent’s Will.
243 SF 239 Probate & Trust Law Amends Iowa Code Section 611.22 to limit the House: Unanimously parties who can represent a decedent’s interest in passed House Floor 94-0 Liability of Decedent’s litigation following a decedent’s death to parties on 2/16/21. Estate who can and must treat the results of litigation as any other asset or liability of the decedent’s estate. Senate: Unanimously passed Senate Floor, Legislation would ensure that a decedent’s liability 48-0 on 2/9/21. pursuant to litigation isn’t given a higher priority for payment than any other claim under §633.425 Awaiting Governor’s of the Probate Code, and that any additional assets Signature to which a decedent becomes entitled after death as a result of litigation aren’t exempt from taxes or other obligations to which estate assets are subject. As proposed, only a personal representative of a decedent’s estate as defined in Section 633.3 or a “successor” as defined in Section 633.356 (the affidavit procedure for settling estates with probate assets worth $50,000 or less) because only these parties are obligated to pay the decedent’s financial obligations (taxes, debts, Medicaid claims etc.). Probate & Trust Law Creates a new chapter in Iowa Code called House: Unanimously SF 240 “Uniform Custodial Trust Act.” This legislation passed House Floor, Uniform Custodial would provide a tool to facilitate small gifts to 94-0 on 2/10/21. Trust Act adults akin to the Uniform Transfers to Minors Act (Chapter 565B). Additionally, this act would be Senate: Unanimously used for litigation proceeds, gifts or bequests to passed Senate Floor, vulnerable adults who may not be qualified to 48-0 on 2/9/21. manage the new assets, but where a conservatorship isn’t a suitable vehicle. Finally, this proposal will Awaiting Governor’s facilitate the management of property for adults and Signature. will facilitate estate planning for testators and trust settlors. HF 587/ Probate & Trust Law This proposal amends and updates the Iowa House: Eligible for SF 235 Probate Code that governs contested claims in Floor Debate Contested Claims in Probate Proceedings, Iowa Code § 633.68- Probate 633.449. More specifically, this legislative Senate: Unanimously proposal updates the required procedures in passed Senate Floor, these proceedings to coordinate with the 48-0 on 2/9/21. EDMS electronic court-filing system. Increases the value of contested claims that can be litigated under these statutes from $300 to the small claims statutory values passed by the legislature in 2019 ($6,500). Finally, this legislative proposal streamlines the notice requirements in these proceedings by removing outdated provisions regarding the use of USPS.
244 HF 561/ Construction Law This proposal amends Iowa Code § 572.8 to House: Eligible for SF 341 allow a mechanic’s lien involving real property Debate Mechanic’s Lien covering multiple counties to be posted once Proceedings on the centralized, digital MNLR system and Senate: On Senate indexed on all applicable counties. Debate Calendar
In addition, this legislative proposal amends Iowa Code § 572.32 to provide statutory certainty on the recovery of attorney fees by prevailing claimants in mechanic's lien actions where the lien is discharged by a bond. HSB 39/ Business Law Along with thirty-three other States and the House: Full House SF 266 District of Columbia, Iowa has generally followed Judiciary Committee Uniform Model the Model Business Corporation Act in enacting Unanimously Passed on Corporations Act the law governing business corporations. It is 2/17/21. substantively sound and well drafted, and it offers benefits to Iowa courts, practitioners, and Senate: Ways & Means businesses on account of its widespread adoption, Subcommittee court interpretations (although non-binding), and Scheduled for 2/22/21. useful Official Comments. In December 2016 the ABA Corporate Laws Committee published a 4th Edition of the MBCA. The 4th Edition amends the MBCA in various substantive ways. It also represents in part a restatement of the MBCA to include amendments approved since publication of the 3rd Edition; and in recognition of continuing developments in the law, the 4th Edition integrates the MBCA with the law governing unincorporated business associations such as LLCS. Finally, some changes were made simply to improve clarity.
In addition to the above legislative proposals, the Iowa State Bar Association supports the following positions as a part of its 2021 Affirmative Legislative Program:
• Full funding of indigent defense and adoption of legislation providing for $5.00 per hour increase with an automatic cost of living increase in indigent defense fees. • Full Funding of the Judicial Branch. • Full funding for Legal Services. • Full funding of the IA Secretary of State’s Office as requested by IA Secretary of State Paul Pate. • Full funding for the Office of Substitute Decision Maker through the Aging and Disability Resource Center to protect the interests of Iowans who have no one else to manage their financial and health care needs. • Support child abuse prevention and treatment efforts and funding for child abuse prevention and treatment. • Oppose the legalization of title insurance. • Oppose absolute immunity legislation. • Oppose arbitrary caps on the recovery of damages in medical malpractice cases.
Updated 2/22/21
245 246 247 248 249 250 251 CUNNINGHAM GROUP REASONS WHY IOWA MEDMAL RATES ARE SO LOW--IOWA TORT REFORM
Damage Caps—Yes
Patient Compensation Fund—No
Apology—Yes
Collateral Source—Yes
Periodic Payments—Yes
Joint and Several Liability—Yes
Limitation on Attorney Fees—Yes (approved by the court)
ADDITIONAL IOWA TORT REFORM PROVISIONS PASSED BY IOWA LEGISLATURE
These provisions were passed at the request of and lobbying by the medical profession modifying Iowa tort law for the benefit of the medical profession.
1984—HF2487 Modification of joint and several liability. Joint and several liability shall not apply to defendants who are found to bear less than 50 percent of total fault.
Peer-review confidentiality clarified in medical malpractice.
Tougher expert-witness standards in medical malpractice.
Speed up requirements of disclosing expert witnesses. Disclosure of experts must be done within 180 days by a plaintiff and 90 days by defense after plaintiff’s designation.
Installment judgments provided for.
Frivolous lawsuit and verification of pleading language adopted. Iowa Code §619.19 and Iowa Rules of Civil Procedure.
1997—HF693 Shortened statute of limitations for minors. Children injured after age 8 must be brought within two years of date of injury.
Defense counsel allowed to meet directly with plaintiff’s treating physician.
252 Joint and several liability between defendants only on economic damages and not for non- economic damages.
2006—HF2716 I’m sorry legislation—apology adopted, which is inadmissible as evidence.
2015—SF426 Allows open discussion with patient within 180 days healthcare provider knew of an adverse health incident.
2017—SF465 For the first time in history of the state, Legislature imposes limits on non-economic damages (pain, suffering and other non-pecuniary damages) to $250,000. Cap applies unless the jury determines through a substantial or permanent loss or impairment.
Further restrictions on expert witness testimony.
Implements certificate of merit affidavit prior to commencement of discovery in the case within 60 days of defendant’s answer.
2020—SF2338 COVID-19 immunity limitation on medical expenses and liability protections for healthcare providers treating persons with COVID-19, unless healthcare provider acted recklessly or with willful misconduct.
253 254 170 medical malpractice filings in 2020.
Activity year-to-date # End pending Law: Tort Claims Filed / Reopened Disposed End of month 1 P.I. - Med/dental malp 170 126 284 2 P.I. - Motor vehicle 1539 1329 2171 3 P.I. - Premises liability 300 216 428 4 P.I. - Prod liab & toxic 18 16 32 5 P.I. - Other negl/intent. 386 332 614 6 Profess. malp (no PI) 35 20 66 7 Prop/financ dmg (no PI) 214 197 266 7.1 Intentional tort 52 23 48 7.2 Libel/Slander 20 17 17
John Goerdt, J.D. | Deputy State Court Administrator Iowa Judicial Branch | State Court Administration Judicial Building | 1111 East Court Avenue | Des Moines | Iowa 50319 515.348.4883 (phone) | 515.348-4914 (fax) [email protected] www.iowacourts.gov
The Iowa Judicial Branch dedicates itself to providing independent and accessible forums for the fair and prompt resolution of disputes, administering justice under law equally to all persons.
255
257 Statutory Modifications to Iowa Tort Law 1982 through 2020
______
James W. Carney, Legislative Counsel Douglas L. Struyk, Assistant Legislative Counsel Jennifer G. Dorman, Assistant Legislative Counsel Iowa State Bar Association
Carney & Appleby, P.L.C. 303 Locust Street, Suite 400 Des Moines, Iowa 50309 Phone: 515-282-6803 Fax: 515-282-4700
E-mail: [email protected] [email protected] [email protected]
258 INTRODUCTION
It has been said that the “law lives”. This would be true of not only case law, but statutory law. In 1975-76, I had the opportunity to begin my tenure as legislative counsel for the Iowa State Bar Association (ISBA). It was at that time that Iowa, like many states, was involved in a huge debate regarding medical malpractice. There were statutory modifications made in the mid 70’s which are not covered in the attached summary.
In 1982 the Iowa Supreme Court, in a historic decision (Goetzman), adopted a negligence concept known as “pure comparative fault” and moved away from the long history of “contributory negligence”. The following year in 1983 the Iowa Supreme Court rendered another historic decision (Butler) that held the state could be liable for negligent design in construction of highways. These two Supreme Court decisions set off a continuing waterfall of legislation modifying the Iowa tort law. In each of the past decades there has been some type of liability crisis that has caused the legislature to examine additional modifications. Waves of tort reform have dealt with medical malpractice, product liability, Y2K hysteria, and other crises, almost all of which have been during a downturn in the stock market resulting in reduced investment income for insurance companies.
The attached summary highlights 110 different pieces of legislation covering more than 140 separate revisions to the Iowa tort law. There can be no question that the Iowa legislature has not been responsive to the pressures of tort reformers and business interests which have continually pushed for what has been historically referred to as tort reform and currently referred to as “regulatory reform”. The attached modifications unquestionably are one of the major reasons why the U.S. Chamber of Commerce State Liability Systems Ranking Study has consistently ranked Iowa in the top four states as doing the best job of creating a fair and reasonable litigation environment. The Iowa State Bar Association and its various sections have played an important part in the review of the legislation and the fine-tuning of the legislation while continuing to oppose radical proposals such as caps on recoveries and elimination of the contingency fee.
Despite the ISBA opposition to caps on recoveries, the Legislature in 2017 enacted caps on recoveries for the first time in the history of the State of Iowa. Caps for healthcare providers were set at $250,000, unless the jury determines there is a substantial or permanent loss, or permanent impairment, or death.
In 2018 the Legislature followed up the medical malpractice caps by passing caps on recoveries, for the second time in the history of the State of Iowa, in dram shop actions. Limitation of $250,000 in non-economic damages were adopted, but again exceptions to the cap were cases involving death, disfigurement or permanent impairment. These caps were adopted, despite the ISBA’s strong opposition, and there being no objective empirical data that would support the implementation of caps in either medical malpractice or dram shop liability cases.
The attached summary has also, no doubt, played an important role in the reduced number of civil filings and civil jury trials in the state of Iowa, which has been on a downward trend for several years. In particular, there has been an ever-expanding list of immunity provisions which has unquestionably reduced litigation. Over 68 different immunities have been added to the Iowa Code since 1983. In the 2020 Legislative Session, COVID-19 protections to medical providers and manufacturers were the latest additions to the long list of immunities.
2592 We hope this summary is of assistance to you in understanding how responsive the Iowa legislature has been to various calls to moderate the Iowa law, and at the same time, restricting or totally eliminating a citizen’s right to seek redress for a harm they have suffered.
Introduction done by Jim Carney
2603 SIGNIFICANT EVENTS AND LEGISLATION RE: IOWA TORT LAW
1982 - Iowa Code - Contributory negligence in effect. If Plaintiff contributes to the cause of his accident, the Plaintiff’s recovery is completely barred-no recovery.
1982 - Goetzman - Decision by Supreme Court adopts pure comparative fault. Example: If Plaintiff is 95% at fault and Defendant is only 5% at fault, the Plaintiff can still recover 5% of total damages awarded by jury.
1983 - Butler Court decision stating that State could be liable for negligent design and construction of highways.
1983 - Senate File 531 (an appropriations bill) is passed by the Legislature eliminating cases against state and governmental subdivisions based upon negligent design or construction of highways in response to Butler decision. This bill also applies to all other public facilities. This bill eliminates liability for the state and governmental subdivisions in these types of cases.
1984 - House File 2487 passes the Legislature providing for:
1. Statutory modified comparative fault in Iowa. If the Plaintiff is 51% or more at fault, the Plaintiff is denied any recovery. The Plaintiff can recover only if the Defendant is 50% or more at fault.
2. Modification of joint and several liability. Joint and several liability shall not apply to Defendants who are found to bear less than 50% of the total fault.
3. Comparative fault applies to all cases, including product liability - strict tort liability. Previously comparative fault was applied only in regular negligence cases (automobile accidents) and not to product liability.
4. Eliminates liability for negligent highway sign cases against state and governmental subdivisions. There is no longer liability if the state or governmental subdivision fails to erect a highway sign.
5. Eliminates removal of snow and ice cases against state and governmental subdivisions. State and governmental subdivisions can no longer be liable if they fail to remove snow or ice from highways.
1986 - Senate File 2265 is passed by the Legislature providing:
1. Revision of dram shop liability law. The law is modified to a standard of liability requiring that the bar owner “knew or should have known” he was serving someone who was intoxicated.
2. “Peer review” confidentiality clarified in the medical malpractice area.
3. Tougher expert witness standards in medical malpractice cases adopted.
2614 4. Speeds up the requirement of disclosing expert witnesses. Disclosure of experts in professional liability cases is required by statute. Plaintiffs must designate within 180 days, and Defendant within 90 days of Plaintiff’s disclosure.
5. More defenses are provided to manufacturers by the statutory adoption of the state of the art defense in product liability cases.
6. The law of punitive damages is restricted by modifying when punitive damage awards can be awarded.
7. Non-use of safety belt becomes admissible. This allows for the possibility of fault being attributed to a Plaintiff in an automobile accident for the failure to use a seatbelt, which was previously prohibited by statute.
8. Installment judgments allowed by petition to court.
9. Frivolous lawsuit and verification of pleading language is adopted.
10. Municipal employees exempted from claims for punitive damages. This means that a municipal employee cannot be liable for punitive damages.
11. Non-manufacturers-retailers immune from product liability suits. This provides an absolute defense to all retailers and merchants in a product liability suit brought against them if they have not modified the product involved in an accident.
1987 - Senate File 471 is passed by the Legislature providing:
1. No liability for a person performing services for the state government, agency, or subdivision of state government who does not receive compensation. Volunteers cannot be held liable.
2. Provides for the elimination of personal liability of officers and directors of virtually all types of corporation and cooperatives doing business in the state of Iowa, to include nonprofit organizations.
3. A director, officer, employee, or volunteer of a nonprofit organization is not liable for their actions.
4. A volunteer for a municipality, agency of subdivision of a municipality is not liable.
1987 - Senate File 482 is passed by the Legislature providing:
1. Interest on judgments section of the code is modified from 10 percent to floating rate consistent with federal law.
2. Installment judgment provisions upon entry of a judgment is expanded.
3. Subrogation law is modified.
2625 4. Collateral source rule is modified in comparative fault cases to permit court to receive evidence of previous payment for necessary medical care, rehabilitation services, and custodial care.
5. Punitive damages law is once again revised to clarify standard of proof.
1989 - House File 529 is passed by the Legislature providing for an exemption from civil and criminal liability arising from the condition of donated food in certain instances, to include restaurants, food establishments, food service establishments, schools, manufacturers of foodstuffs and other persons who donate food in good faith.
The Legislature enacts Chapter 626B, entitled the “Uniform Foreign Money Judgments Recognition Act”.
House File 585 is passed by the legislature establishing a State Emergency Medical Board authorizing the establishment for a surrogate decision maker mechanism for medical care decisions for patients incapable of making their own decisions and grants immunity from liability to those persons.
1990 - House File 2404 provides for farm mediation. Before making a claim in a civil proceeding the mediator must certify that the party making a claim participated in mediation.
Senate File 2296 provides for the Iowa Council for Dispute Resolution to assist and promote the statewide use of non-judicial dispute resolution.
House File 2552 redefines third party liability, property damages and bodily injury under § 455G of the Iowa Comprehensive Petroleum Underground Storage Tank Fund. The bill specifically provides that third party liability does not include any claim, suit or action for personal injury in that a personal injury is not a compensable third party liability under the code chapter.
1991 - Senate File 441 provides that the State Tort Claims Act immunity from liability is extended to activities of the Insurance Commissioner concerning the oversight and administration of workers’ compensation self insurance.
Senate File 327 is passed requiring the terms of all settlements, payments, or other dispositions of claims for damages against governmental bodies insured by third party liability insurers, must be filed with that body as public records.
House File 501 establishes Durable Power of Attorney authorizing health care decisions to be made on behalf of individuals and provides that health care providers are immune from civil liability when relying upon health care decisions made by the attorney in fact designated in the Durable Power of Attorney.
1992 -
1993 - House File 645 excludes from civil liability persons who do not exhibit managerial control over a property on which a hazardous environmental condition is located.
2636 House File 200 establishes a volunteer physician program, under which volunteer physicians who register with the Department of Human Services are considered an employee of the State of liability purposes.
1994 - House File 2286 increases the Small Claims jurisdictional limit from $2,000 to $3,000 (effective July 1, 1994), and provides for another increase to $4,000 (on July 1, 1995).
1995 - Senate File 179 adds advance nurse practitioners, licensed practical nurses to EMS personnel who are exempt from liability if they are following physicians’ orders at the scene of an emergency. Also adds advance nurse practitioners and registered nurses to the list of persons who are not subject to civil liability solely for not obtaining consent before providing emergency aid.
House File 504 redefines “owner” for purposes of determining liability for damages caused by the driver of a motor vehicle, to mean a person to whom a certificate of title is issued or assigned, or a person to whom the vehicle is leased, thus exempting the lessor from civil liability.
House File 519 provides that if a person receives all required permits for animal feeding operations, a rebuttable presumption arises that the operation is not a public or private nuisance and the operation does not unreasonably and continuously interfere with another person’s comfortable use and enjoyment of their life or property. The rebuttable presumption may be overcome by clear and convincing evidence that (1) the operation in reasonably and continuously interferes with another person’s comfortable use and enjoyment of their life or property, and (2) the injury or damage is proximately caused by the negligent operation of the feeding operation. Provides that a losing plaintiff must pay costs and expenses incurred in the defense of an action, if the Court determines the claim is frivolous.
1996 - House File 2061 is amended by adding the following new paragraph to Section 147.1, subsection 5:
f. “A health care entity, including but not limited to a group medical practice, that provides health care services and follows a formal peer review process for the purpose of furthering quality health care.”
1997 - House File 132 provides domesticated animal professionals, domesticated animal activity sponsors, owners of domesticated animals, and persons exhibiting domesticated animals immunity from civil liability for damages, injury, or death suffered by a participant or spectator, which results from inherent risks of domesticated animal activity.
House File 370 makes specific provisions for work comp to professional athletes limiting exposure. This was known as the “Barnstormer’s bill”.
House File 514 provides that notwithstanding Chapter 321A, a person shall not drive a motor vehicle registered in the state on the highways unless financial liability coverage is in effect for the motor vehicle or unless they have provided for proof of financial liability.
House File 693 has passed, which makes the following revisions to tort law:
2647 1. Provides that interest on all judgments, except judgments for child support accrues at the treasury bill rate, plus 2%.
2. Provides a 15 year statute of repose for death or injury caused by product defects.
3. Shortens the statute of limitations for minors who are injured by acts of medical malpractice to require children who are injured while under the age of 8, to commence an action no later than their 10th birthday. Children injured after age 8, must bring an action within two (2) years of the date of injury.
4. Makes substantial changes relating to the provision of medical records, including allowing defense counsel to meet directly with a Plaintiff’s treating physician or medical provider. Also provides immunity from civil liability to medical providers who respond in good faith to requests for records.
5. Requires the Court to adjust future damages to reflect present value.
6. Allows a Plaintiff’s percentage of contributory fault to apply to their spouse’s loss of consortium claim, overruling Swenan v. Abel.
7. Allows joint and several liability between Defendants only for economic damages, and not for non-economic damages.
Senate File 280 provides immunity from civil liability to employers who provide work related information about a former or current employee to a prospective employer.
1998 - House File 2211 amends the State Tort Claims Act regarding persons who supervise inmates under the terms of the Chapter 28E Agreement, and provides that the State’s duty to indemnify and hold harmless an employee does not apply where an employee fails to cooperate in the investigation or defense of a claim. Also provides that a county shall not be liable for medical treatment for injuries incurred by a person before the person is transferred to the custody of the sheriff.
House File 2336 provides that a perpetrator of a crime assumes the risk of and is liable for any loss, injury or death which results from or arises out of the perpetrator’s course of criminal conduct. Specifies that a crime victim is not liable for any damages caused by acts of the victim in defending or attempting to defend against the crime if the victim used reasonable force when committing the acts.
House File 2340 expands the volunteer health care provider program to include dentists and obstetrical and gynecological medical providers.
Senate File 2082 provides that persons who tamper with anhydrous ammonia equipment have no cause of action against the owner of the equipment, any person responsible for the installation and maintenance of the equipment, or a person who lawfully sells the anhydrous ammonia for damages arising out of the tampering.
Senate File 2277 grants immunity from liability to municipalities for any claim based upon or arising out of a claim of negligent design or specification or negligent construction or 2658 reconstruction of a public facility designed for purposes of skateboarding or inline skating. Also grants immunity for claims based upon or arising out of an act or omission of an officer or employee of the municipality when the person who is skateboarding or inline skating knew or reasonably should have known that the activity created a substantial risk of injury to the person, and the person was voluntarily in the place of risk.
1999 - House File 164 allows the award of appellate attorney’s fees to any party that successfully establishes a violation of the open meetings law, Iowa Code Chapter 21.
House File 387 adopts a new section, 622.10A, that provides that with respect to communications involving tax advice between a taxpayer and a federally authorized tax practitioner, the same protections of confidentiality which apply to a communication between a taxpayer and an attorney also apply to that communication to the extent that the communication would be considered a privileged communication if it were between a taxpayer and an attorney. Makes the confidentiality privilege applicable to non-criminal tax matters before the Iowa Dept. of Revenue & Finance and non-criminal tax proceedings in federal or state court brought by or against the State of Iowa. Provides definitions and excludes from the confidentiality privileged communications in connection with a promotion of participation in a tax shelter.
Senate File 405 grants tort immunity to financial institutions and public utilities for year 2000 problems, by limiting liability to actual damages, providing an affirmative defense of compliance with regulatory requirements, and a reasonable efforts defense. Requires the plaintiff to prove by clear and convincing evidence that the defendant knew or should have known that its acts or omissions would cause harm to the plaintiff in the specific facts and circumstances of the case. Requires apportionment of damages pursuant to chapter 668. VETOED.
2000 – Litigation
House File 2473 (Civil and Criminal Immunity for School Employees) grants immunity from civil or criminal liability to employees of a school district, an accredited non-public school, or an area education agency who participate in good faith and acts reasonably in making a report or investigation of threats of violence or other inappropriate inactivity against a school employee or student in a school building, on school grounds or at a school-sponsored function.
House File 2525 (Limitations on Non-Economic Damages) adds a new Code section, 613.20, to generally prohibit, in an action to recover damages arising out of the operation or use of a motor vehicle, a person from recovering non-economic losses including pain and suffering, if the injured person was the operator of a motor vehicle, a passenger in a motor vehicle, or a pedestrian, and the person’s injuries were proximately caused by the person’s commission of any felony or immediate flight therefrom, and the injured person was convicted of the felony. Provides that the section does not apply if the injured person is found to have no fault in the accident.
Senate File 2313 –(ATVs and Snowmobiles) provides that the owner of all-terrain vehicles or snowmobiles is liable for any injury or damage occasioned by the negligent operation of the
2669 ATV or snowmobile, only if the owner was the operator of the ATV at the time the injury occurred or if the operator had the owner’s consent. Various effective dates.
2001 – Senate File 355 creates Iowa Code Chapter 232B, the Newborn Safe Haven Act. Allows a parent to voluntarily release custody of a child who is 14 days old or younger to a hospital or other health care facility, or authorize another person to relinquish physical custody on the parent’s behalf. Grants immunity to: the individual who receives the child and the owner of the healthcare facility; a person who helps the parent surrender the child; the parent from provisions regarding the abandonment of a child.
House File 590 provides for the deeming of consent by individuals for AIDS testing, or testing for other contagious or infectious diseases, if a care provider giving assistance to the individual suffers a significant exposure. Grants immunity from civil or criminal liability to a hospital, health care provider, or other participating person for a good faith failure to comply with the notification provision or failure to perform the test authorized under this act.
House File 301 requires rural water districts or rural water associations to establish a rural fire protection program. Provides that a rural water district or association is immune from liability for a claim against the district or association for failure to provide or maintain fire hydrants, facilities, or an adequate supply of water or water pressure for fire protection purposes if the purpose of the hydrant, facility, or water used is not for fire protection. Requires the Legislative Council to provide for a review of the liability exemption no later than July 1, 2006, to assess its effect on the provision of fire protection in areas served by the rural water district or association.
2002 – Senate File 2155 provides for the development and use of out-of-hospital DNR orders. Provides immunity for persons acting in compliance in entering, executing, or otherwise participating in an order.
Senate File 2195 amends provisions of the Uniform Anatomical Gift Act. Contains provisions regarding release of patient information and immunity from civil or criminal liability.
Senate File 2279 makes changes to various provisions in the Iowa Code related to insurance. Adds a new section to Code Chapter 508E, relating to viatical settlement contracts, which provides immunity from liability for any person acting without malice, fraudulent intent, or bad faith who files a report or furnishes information to certain persons concerning alleged acts in violation of the chapter or administrative rules.
House File 2547 adds chiropractors, dental hygienists, and dental assistants to the list of health care providers eligible to participate in the Dept. of Public Health’s Volunteer Health Care Provider Program and for which immunity from civil liability applies.
2003 – HF 502 amends Iowa Code Section 321.69 relating to damage disclosure statements required for transfer of ownership of motor vehicles. This Code Section provides that a person, authorized vehicle recycler licensed under Chapter 321H, or motor vehicle dealer licensed under Chapter 322 are not liable to a subsequent owner of a vehicle because a prior owner or lessee 1) gave a false or inaccurate damage disclosure statement; or 2) failed to disclose that the vehicle had previously been damaged and repaired, or had been titled on a salvage or 26710 rebuilt certificate of title unless the person, recycler, or dealer knew or reasonably should have known that the prior owner or lessee gave a false statement or failed to disclose. HF 502 extends this liability limitation to subsequent drivers and passengers in addition to subsequent owners.
HF 557 extends civil liability immunity under the volunteer health care provider program to free health care clinics and to additional health care providers (licensed psychologists, social workers, mental health counselors, and pharmacists).
HF 584 provides an exemption from liability regarding a municipality’s negligent design, or negligent construction or reconstruction, of a public facility designed for purposes of bicycling, unicycling, scootering, river rafting, canoeing, or kayaking that was constructed or reconstructed, reasonably and in good faith, in accordance with generally recognized engineering or safety standards, or design theories in existence at the time of construction or reconstruction. Provides an exemption from liability for municipalities relating to claims based upon acts or omissions of an officer or employee of the municipality by a person engaged in bicycling, unicycling, scootering, river rafting, canoeing, or kayaking on public property when the person knew or reasonably should have known that these activities created a substantial risk of injury and the person was acting voluntarily. Provides that prior owners of land on which an all-terrain vehicle recreational riding area is established, maintained, or operated owe no duty of care to keep the land safe for entry or use by persons operating an all-terrain vehicle, or to issue warning of a dangerous condition on the premises.
HF 692 included the following changes in the State’s tort law:
PUNITIVE DAMAGES – When seeking punitive damages, a plaintiff must prove by a preponderance of clear and convincing evidence that the defendant’s conduct constituted actual malice.
CIVIL CONSPIRACY – Eliminates the civil conspiracy cause of action against a manufacturer or seller unless such a person knowingly and voluntarily entered into an agreement, express or implied, to participate in a common plan with the intent to commit a tortious act upon another.
SUPERSEDEAS BONDS – Authorizes the District Court, upon motion for good cause, to stay all proceedings under the judgment or order being appealed and permits the State or any political subdivision to appeal the judgment to the Iowa Supreme Court without the filing of a supersedeas bond. Amends Iowa Code Section 625A.9 to provide that in the case of an appeal from a money judgment or order, the bond shall not exceed 110% of the amount of the money judgment.
The Legislature Passed HF 692 on 6/4/03 during the Special Session, and the Governor signed the bill with item vetoes. The “punitive damages” and “civil conspiracy” changes were item vetoed out of the bill, and the “supersedeas bond” changes were signed into law.
2004 - HF 2170 provides that an assembler, designer, supplier of specifications, distributor, manufacturer, or seller shall not be subject to liability for failure-to-warn claims in product liability actions for product risks and risk-avoidance measures obvious to or generally known 26811 by foreseeable product users. The bill further provides that when there is a question as to whether the risk or risk-avoidance measure was obvious or generally known, the issue shall be decided by the trier of fact.
HF 2170 also provides that in any action against an assembler, designer, supplier of specifications, distributor, manufacturer, or seller for damages arising from an alleged defect in packaging, warning, or labeling of a product, a product bearing or accompanied by a reasonable and visible warning or instruction that is reasonably safe for use if the warning or instruction is followed shall not be deemed defective or unreasonably dangerous on the basis of failure to warn or instruct. When there is a question as to whether the warning or instruction is reasonable and visible, the issue shall be decided by the trier of fact.
HF 2243 allows the negligence or other fault of the customer, owner, or person possessing or using a liquefied petroleum gas system relating to installation, modification, maintenance, or repair of the system to be admissible evidence if the conduct was a cause in fact of the accident or condition leading to the injuries or damages.
HF 2396 limits recovery of prejudgment interest in any pending or proposed action where an offer to confess judgment is made, but is not accepted, and a subsequent trial results in a judgment that is less than the amount in the offer to confess judgment. In such a case, no prejudgment interest is to be calculated or is recoverable after the date of the offer to confess judgment. Vetoed.
HF 2397 amends Code Section 657.1, relating to the definition of nuisance. Provides that an electric utility may assert a defense of comparative fault in an action to abate a nuisance against the utility if the electric utility has complied with engineering and safety standards and if the electric utility has secured all required permits and approvals.
HF 2440 creates the “Noneconomic Damage Awards Against Health Care Providers Act”. Provides that in any action for noneconomic damages for injury or death against a health care provider, whether based in tort, contract, or otherwise, arising out of an act or omission in connection with the provision of health care services, the injured plaintiff shall be entitled to recover noneconomic damages not to exceed $250,000, except upon a finding of actual malice on the part of the defendant. Defines a “health care provider” as a physician, an advanced registered nurse practitioner, a hospital, and a health care facility as defined in Code Section 135C.1. Vetoed.
SF 2177 requires school districts and accredited nonpublic schools to allow a student to possess and self-administer asthma medication if the student’s parent or guardian submits written authorization and provides a written statement from the student’s physician containing the following: (1) name and purpose of the medication; (2) prescribed dosage; and (3) times at which or special circumstances under which the medication is to be administered.
Also, the student’s parent or guardian must be notified in writing and must sign a statement acknowledging that the school district or nonpublic school and its employees are not liable, except for gross negligence, as a result of any injury arising from self-administration of medication. Provides that a school district or nonpublic school and its employees acting reasonably and in good faith shall incur no liability for any improper use of medication or for supervising, monitoring, or interfering with a student’s self-administration of medication. 26912
SF 2230 provides that a person that holds indicia of ownership of property contaminated by a hazardous substance, hazardous waste, or regulated substance, and that satisfies certain ownership-related requirements, is not liable to a third party for any third-party liability arising from such contamination.
Also provides that a person that has acquired property contaminated by a hazardous substance, hazardous waste, or regulated substance is not liable to a third party for any third- party liability arising by reason of such contamination, provided that the person does not knowingly cause or permit a new or additional hazardous substance, hazardous waste, or regulated substance to arise on or from the acquired property that injures a third party or contaminates property owned or leased by a third party, and the person is not a potentially responsible party or affiliated with any potentially responsible party by reason of certain relationships.
Also requires a person that holds indicia of title to property as identified in this bill or a person that has acquired property as identified in this bill to provide reasonable access to the acquired property to any potentially responsible party or to any authorized regulatory authority for the purpose of investigating or evaluating any contamination; planning or preparing a remedial plan for any abatement of the contamination; and for any required remediation.
States that the legislation does not affect the legal responsibility to the State to conduct response actions regarding cleanup of hazardous substances. Vetoed.
SF 2306 amends Code Section 625A.9 to provide that if a civil judgment or order appealed from in a civil action is for money, an appeal bond may not exceed 110% of the amount of the money judgment unless the court makes specific findings justifying exceeding such an amount. In doing so, the court must consider certain criteria. Notwithstanding this provision, the legislation further provides that in no case shall an appeal bond exceed $100 million, regardless of the value of the money judgment. However, the limit shall not apply in cases where the court finds that the defendant intentionally dissipated the defendant’s assets outside the ordinary course of business for the purpose of evading payment of the judgment. The legislation takes effect upon enactment and applies to cases pending and filed on or after the effective date.
2006 - HF 2546 provides limited immunity from premises liability to private landowners who allow bow hunting of deer on their property for the purpose of urban deer control, pursuant to a municipal ordinance. Limited immunity from premises liability is currently available to private landowners who allow public use of their land without charge for recreational purposes such as hunting, trapping, horseback riding, fishing, swimming, and similar activities. The bill provides that such a landowner does not owe a duty of care to keep the premises safe for entry or use by such deer hunters, or to give warnings of dangerous conditions, uses, structures, or activities on the premises to such deer hunters. The bill also provides that the deer hunters do not have the status of invitees or licensees. The landowner's liability is not limited for a malicious failure to warn of danger or for injuries that occur when the landowner charges the hunter to go on the land. The bill does not create a duty of care or ground of liability for injury to persons or property. It does not relieve a deer hunter from
27013 any obligation to exercise care in the use of the land and in the deer hunter's activities, or from the legal consequences of the hunter's failure to employ such care.
SF 2318 provides that the emergency medical care requirements for training and certification of and exemptions from liability for emergency medical care providers do not apply to a registered member of the national ski patrol system, an industrial safety officer, a lifeguard, or a person employed or volunteering in a similar capacity when the person provides on-site emergency medical care at a facility solely to the patrons or employees of that facility, provided that the person: 1) provides emergency medical care only within the scope of the person's training and certification, and 2) provided the person does not claim to be a certified emergency medical care provider. The bill also provides that the emergency medical care provisions do not apply to the national ski patrol system or any similar system in which the system provides on-site emergency medical care at a facility solely to the patrons or employees of that facility provided that: 1) the system does not provide transportation to a hospital or other medical facility, and 2) the system does not use any term to indicate or imply authorization to transport patients without having obtained proper authorization to transport patients under the subchapter.
HF 2716 provides that in any civil action for professional negligence, personal injury, or wrongful death, or in any arbitration proceeding relating to such a civil action against: 1) a person in a profession represented by the examining boards listed in Code section 272C.1 and any other licensed profession in this state; 2) a licensed hospital; or 3) a licensed health care facility, any statement, affirmation, gesture, or conduct expressing sorrow, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that was made by the person to the plaintiff, relative of the plaintiff, or decision maker for the plaintiff that relates to the discomfort, pain, suffering, injury, or death of the plaintiff as a result of an alleged breach of the standard of care is inadmissible as evidence. Any response by the plaintiff, relative of the plaintiff, or decision maker for the plaintiff is similarly inadmissible as evidence. The legislation creates the “Iowa Health Care Collaborative” and authorizes the Collaborative to collect information and make morbidity and error reports. New Code Section 505.27 requires insurers providing medical malpractice insurance coverage to Iowa health care providers to file annually with the Insurance Commissioner a report of all medical malpractice insurance claims, both open and closed claims filed during the reporting period, against any Iowa insureds during the preceding calendar year. The Insurance Commissioner is required to make an aggregate report of the information, without including information that could identify the insurer
2007 - SF 509 Revised Uniform Anatomical Gift Act. Revises the Uniform Anatomical Gift Act, Code Chapter 142C. Section 142C.11(1) provides immunity from liability in any civil action, criminal prosecution, or administrative proceeding for persons who comply with this chapter in good faith or with the applicable anatomical gift law of another state, or who attempts in good faith to comply. Section 142C.11(2) provides that an individual who makes an anatomical gift pursuant to Code Chapter 142C and the individual’s estate are not liable for any injury or damages that may result from the making or the use of the anatomical gift, if the gift is made in good faith.
SF 593 Court Procedures Bill/Peace Officer Liability. Amends Code section 664A.6 (Mandatory Arrest for Violation of No-Contact Order”) to provide that a peach officer shall not be held civilly or criminally liable for acting pursuant to this section if the peace officer 27114 acts in good faith and on reasonable grounds, and the peace officer’s acts do not constitute a willful or wanton disregard for the rights or safety of another.
2008 - SF 505 Civil Liability & Automated External Defibrillator. Lists persons or entities, while acting reasonably and in good faith, who render emergency care or assistance relating to the preparation for and response to a sudden cardiac arrest emergency who are not liable for civil damages for acts or omissions arising out of the use of an automated external defibrillator, whether occurring at the place of an emergency or accident, while persons are in transit, or while persons are at or being moved to or from an emergency shelter.
HF 2581 Donation of Food to Department of Natural Resources or County Conservation Boards- Liability Iowa Code Section 672.1, Subsection 2, gives immunity from criminal or civil liability to persons who, in good faith, donate food to a charitable or nonprofit organization for free distribution to the needy if the donor reasonably inspects the food at the time of the donation and finds the food fit for human consumption. HF 2581 extends the same liability protection to persons who donate food to the Department of Natural Resources or a county conservation board for use in a free interpretive educational program. The immunity provided by this subsection does not extend to a donor if damages result from the negligence, recklessness, or intentional misconduct of the donor, or if the donor has, or should have had, actual or constructive knowledge that the food is tainted, contaminated, or harmful to the health or well-being of the ultimate recipient.
SF 2428 Collection of Delinquent Debt Owed the State and Political Subdivisions. Provides that a claimant agency or licensees under Code Chapter 99D (pari-mutuel wagering) and Code Chapter 99F (gambling boats, structures, and racetracks), acting in good faith, shall not be liable for actions taken to comply with the Act.
2009 - SF 207 Iowa Finance Authority- Immunity for Board Members. Among other provisions, SF 207 provides that members of the authority, or persons acting on behalf of the authority while acting within the scope of their agency or employment, are not subject to personal liability resulting from carrying out the powers and duties in Code Chapter 16.
SF 280 Disaster Emergency Assistance Immunity Amends Code Section 613.17 concerning immunity for emergency assistance in an accident. Provides that, during a disaster or in the period of time immediately following a disaster for which the Governor has issued a proclamation of disaster emergency pursuant to Code Section 29C.6, a person who in good faith renders emergency care or assistance without compensation is not be liable for any civil damages for acts or omissions occurring during the rendering of the emergency assistance at the place of the disaster emergency or while the person is in transit to or from the emergency or while the person is being moved to or from an emergency shelter unless such acts or omissions constitute recklessness or willful and wanton misconduct.
SF 377 Prescription Drug Donation Repository Program/ Immunity Provisions. Provides that in addition to pharmacies and medical facilities that participate in the prescription drug donation repository (Code Chapter 135M), the Department of Public Health may also receive prescription drugs or supplies directly from the prescription drug donation repository contractor and may distribute the prescription drugs and supplies through persons licensed to dispense to eligible individuals pursuant to the program. The Department may receive and distribute such prescription drugs and supplies during or in preparation for a proclaimed 27215 state of disaster emergency or a public health disaster. SF 377 provides immunity from civil and criminal liability for the Department, or the Department's employees, agents or volunteers acting reasonably and in good faith under the program. The bill also exempts the Department and its employees, agents, or volunteers from disciplinary action related to the person’s acts or omissions with regard to the donation, acceptance, distribution, or dispensing of a donated prescription drug.
2011 - SF 123 Civil Liability Immunity For Board of Educational Examiners’ Members/Employees. Provides that a person shall not be civilly liable for their acts, omissions, or decisions as a member, employee, or agent of the Board of Educational Examiners if such actions are reasonable and in good faith. Provides that a person shall not be civilly liable, as long as they do not act with malice, for filing a report or complaint with the board or disclosing to the board various forms of information. Provides that a person shall not be dismissed from employment or discriminated against by an employer for their involvement with the board. Provides that an employer who violates the terms of the legislation shall be liable to the aggrieved person for actual and punitive damages plus reasonable attorney fees.
SF 531 Motor Fuels- Retail Dealers’ Limitation on Liability. Division II of SF 531 provides that a retail dealer regulated under Code Chapter 214A is not liable for damages caused to a motor by the use of an incompatible motor fuel dispensed at the retail dealer’s retail motor fuel site if the following conditions are met: (1) the motor fuel complies with legal specifications, (2) the retail dealer, including an employee or agent of the retail dealer, did not select the incompatible motor fuel, and (3) the dispensing pump is correctly labeled.
2012 – No Tort Legislation this year.
2013 - HF 649 Landholder Liability for Public Recreational Use of Private Lands & Waters. HF 649 responds to the recent Iowa Supreme Court decision in Sallee v. Stewart, (No. 11-0892) (Iowa 2013). Amends Code Chapter 461C, “Public Use of Private Lands and Waters”, to apply Chapter 461C to “holders” of land (including tenants and others in control), not just landowners. Amends the definitions of “land”, “recreational purpose”, and “urban deer control” and includes immunity from liability for landholders with respect to specified activities. HF 649 expands the types of private land and waters that are included in such limitations of liability and provides that such land does not have to be open to the general public to be subject to the protections of Code Chapter 461C. Also defines “land” to include private land within a municipality used for urban deer control. Defines activities that constitute a “recreational purpose” to include educational activities and provides that “recreational purpose” includes a person’s activity in accompanying another person who is engaged in a recreational purpose. “Recreational purpose” and “urban deer control” are not limited to active engagement in such activities, but also include entry onto, use of, passage over, and presence on any part of the land in connection with or during the course of such activities. HF 649 also provides that a holder of land “does not owe a duty of care to others solely because the holder is guiding, directing, supervising, or participating in any recreational purpose or urban deer control undertaken by others on the holder’s land”.
2014 -- HF 2397 Liability Protection for Volunteers on State Lands. Requires the Department of Natural Resources to establish a state lands volunteer program to authorize nonprofit organizations to provide volunteer services for the benefit of state lands. Provides that nonprofit organizations, and individuals providing services on behalf of the nonprofit 27316 organizations, authorized to provide volunteer services for no compensation shall be afforded the liability protections of a state volunteer under the state tort claims Act. Signed by the Governor 3/26/14. Effective 7/1/14.
SF 2255 Iowa Tort Claims Act & Architects and Engineers. Designates registered architects and licensed professional engineers as employees of the state for specified disaster-related activities under the Iowa Tort Claims Act contained in Code Chapter 669. Provides that registered architects and licensed professional engineers shall be considered employees of the state when voluntarily and without compensation they provide initial structural or building systems inspection services for the purposes of determining human occupancy at the scene of a disaster. To be considered an employee of the state, the architect or engineer must act at the request and under the direction of the Commissioner of Public Safety and in coordination with the local emergency management commission. “Compensation” does not include reimbursement for expenses. Signed by the Governor 3/26/14. Effective 7/1/14.
HF 398 Insurance Producer Duties. Deems that an insurance producer has no duty to provide advice unless the producer claims to be a counselor or consultant and receives additional compensation. States that an insurance producer owes duties only to the policy owner, a person who has executed written instruments to become a policyholder, a person in privity of contract with the producer and the principal in an agency relationship with the producer. Defines policy owner as a person who is the legal owner or otherwise has legal title through a valid assignment properly recorded but not a person with only beneficial interest in the policy. Notwithstands the holdings in Pitts v. Farm Bureau Life Ins Co, 818 NW 2d 91 (Iowa 2012) and St. Malachy Roman Catholic Congregation v. Ingram, 841 NW 2d 2 (Iowa 2013). The House PASSED the bill 51-44; the Senate PASSED the bill 26-21. Signed by the Governor 5/23/14.
2015 --HF 496--Military Victim Advocate Privilege. With the exception of certain circumstances, HF 496 provides that a military victim advocate is privileged from examination and is not required to give evidence in civil or criminal proceedings relating to confidential communications between a victim and the military victim advocate provided that the victim advocate has completed a military victim advocate course. For purposes of this legislation, “victim” is defined as “a person who consults a military victim advocate for the purpose of securing advice, advocacy, counseling, or assistance concerning a mental, physical, or emotional condition caused by a sexual crime committed against the person”. Signed by the Governor 4/8/15. Effective 7/1/15.
HF 570--Municipal Tort Liability Exemption. Provides that the current municipal tort liability exemption for claims related to the negligent design, specification, construction, or reconstruction of a public facility designed for specific recreational activities be extended to public facilities designed for any recreational activity. Extends the municipal tort liability exemption from injuries a person suffers while participating in one of the recreational activities enumerated in the current statute to injuries a person suffers while participating in any recreational activity, provided that the injury results from the normal and expected risks inherent in the recreational activity. Signed by the Governor 4/1/15. Effective 7/1/15.
SF 426--Privileged Communications Between a Health Care Provider/Health Facility and Patient Following an Adverse Health Care Incident. Allows a health care provider, or a health care provider jointly with a health facility, to engage in an open, confidential discussion with 27417 a patient related to an adverse health care incident. Defines “adverse health care incident” as an objective and definable outcome of patient care that results in the death or serious physical injury of a patient. Defines “health care provider” as a licensed physician, licensed physician assistant, licensed podiatrist, or a licensed advanced registered nurse practitioner. Defines “patient” as a person who receives medical care from a health care provider, or if the person is a minor, deceased, or incapacitated, the person’s legal representative. Defines “health facility” as an institutional health facility as defined in Code section 135.61, licensed hospice, home health agency, certified assisted living program, clinic, or community health center, and includes any corporation, professional corporation, partnership, limited liability company, limited liability partnership, or other entity comprised of such facilities.
If an adverse health care incident occurs, the bill allows a health care provider, or a health care provider jointly with a health facility, to offer to engage in an open discussion with the patient. The notice of an offer to engage in an open discussion must be sent to the patient within 180 days after the date on which the health care provider knew, or through the use of diligence should have known, of the adverse health care incident. If the patient agrees to proceed with an open discussion, the health care provider or health facility may investigate the adverse health care incident, disclose the results to the patient, and discuss steps the health care provider or health facility will take to prevent similar adverse health care incidents. The health care provider or health facility may also communicate to the patient that either the health care provider or health facility has determined that an offer of compensation is not warranted or that an offer of compensation is warranted. An offer of compensation may be conditioned upon the patient executing a release of future liability as to the adverse health care incident. All communications made under the Code Chapter are privileged and confidential, are not subject to discovery, subpoena, or other means of legal compulsion for release, and are not admissible in evidence in a judicial, administrative, or arbitration proceeding. Provides that a payment made under the Code Chapter is not a written claim or demand for payment, a claim that must be submitted to a licensing board under Code Section 272C.9, or a medical malpractice insurance claim that must be reported to the Commissioner of Insurance under Code Section 505.27. Signed by the Governor 4/14/15. Effective 7/1/15.
SF 462--Maintenance/Administration of Epinephrine in Schools and Other Facilities. Permits the school district Boards of Directors and authorities in charge of an accredited nonpublic school to maintain in a secure location at each school a supply of epinephrine auto-injectors for use as provided in the bill. Permits a licensed health care professional to prescribe epinephrine auto-injectors in the name of a school district or accredited nonpublic school to be maintained for use. Allows personnel authorized to administer epinephrine to provide or administer an epinephrine auto-injector from a school’s supply to a student or other individual if such personnel reasonably and in good faith believe the student or other individual is having an anaphylactic reaction. Provides immunity from legal liability for any injury arising from the provision, administration, or assistance in the administration of an epinephrine auto-injector for the following persons, provided they have acted reasonably and in good faith: 1) Any personnel authorized to administer epinephrine who provide, administer, or assist in the administration of an epinephrine auto-injector to a student or other individual present at the school who such personnel believe to be having an anaphylactic reaction; 2) A school district or accredited nonpublic school employing the personnel; 3) The school district Board of Directors or authorities in charge of the accredited nonpublic school; 4) The prescriber of the epinephrine auto-injector. SF 462 additionally permits a food establishment, carnival, recreational camp, youth sports facility, or a sports area to maintain 27518 a supply of epinephrine auto-injectors at locations where members of the public may be present, with the same duties, powers, and immunities. Permits a student with a written statement from a licensed health care professional on file to possess and use an epinephrine auto-injector while in school, at school-sponsored activities, under the supervision of school personnel, and before or after normal school activities, such as while in before-school or after- school care on school-operated property. Requires a school district or nonpublic school to notify a student’s parent or guardian before withdrawing the privilege to use an epinephrine auto-injector. Signed by the Governor 4/24/15. Effective 7/1/15.
2016 SF 2218--Administration of Emergency Drugs. Adds a new section to Iowa Code Section 135.190, which permits emergency medical service programs, law enforcement, registered nurses, and the fire department to obtain and maintain a supply of opioid antagonists. It further permits first responders and other individuals in a position to assist, to possess these opioid antagonists for the purposes of administering them to an overdose victim provided that the individual assisting has a good faith belief that the individual is experiencing an opioid-related overdose. It further directs the department of public health to implement and administer the bill including standards and procedures for prescription, distribution, storage, and replacement as well as administration of opioid antagonists and further directs that the department of public safety implement training procedures for first responders in the administration of opioid antagonists. The bill also provides immunity for those individuals who assist with administration of opioid antagonists, stating that an individual in a position to assist who has acted reasonably and in good faith shall not be liable for any injury arising from his or her administration or assistance with administration of the opioid antagonists. Signed on 4/6/16. Effective Date 7/1/16.
2017 SF 465 Medical Malpractice Claims. For the first time in the history of the state, the Legislature has imposed limits on non-economic damages (pain, suffering and other non- pecuniary damages) for personal injury or death against a health care provider to $250,000. The cap applies unless the jury determines that there is a substantial or permanent loss or permanent impairment of a bodily function, substantial disfigurement, or death.
Experts: The bill further restricts testimony by experts who will testify as to the appropriate standard of care or breach of care to experts in the same or substantially same field, in good standing in each state of licensure, and in the five years preceding the act or omission has not had a license in any state revoked or suspended. The expert must have practiced in the same or similar field or have been a qualified instructor at an accredited university five years prior to the act. If the defendant is board certified, the expert must be board certified in the same or substantially similar specialty.
Certificate of Merit: Prior to commencement of discovery in the case, and within 60 days of the defendant’s answer, the plaintiff must serve the defendant with a certificate of merit signed by the expert and certify that: (1) the expert has familiarity with the applicable standard of care; (2) that the standard of care was breached; (3) a separate certificate of merit shall be served on each defendant; (4) failure to comply with this section shall result upon motion and dismissal with prejudice.
Applicability: The act applies to causes of action which accrue after the effective date of the act. Signed on 4/6/16. Effective Date 7/1/16.
27619 SF 413 Statute of Repose or Improvements to Real Property. Iowa Code §614.1(11). This reduced the statute of repose in residential construction to ten years and other non- residential construction to eight years. Nuclear power plants or interstate pipelines remain at 15 years. There are exceptions to reduce time periods for: (1) intentional misconduct; (2) fraudulent concealment; (3) discovery rule – one additional year possible. Signed 4/13/17. Effective Date 7/1/17.
HF 517 Justifiable Use of Reasonable and Deadly Force. The bill provides immunity for a person who is justified in using reasonable force against an aggressor in the defense of oneself, another person or property and is immune from criminal or civil liability for all damages incurred by the aggressor. The bill specifically provides that a person who injures or causes death of the aggressor through the application of reasonable force shall not be held civilly liable for such injury or death. Signed and Effective on 4/13/17.
HF 518 Worker’s Compensation. Rewrites a major portion of the worker’s compensation statute making major modifications. Major changes include (1) modification of Sec. 85.23 regarding 90-day notice of injury and defining the date of injury as when employee knew or should have known that the injury was work-related; (2) Sec. 85.33 allows suspension of benefits if a return to suitable work has been offered and refused; (3) Sec. 85.34 relates to modifying permanent disability compensation by removing the date of return to work and changes shoulder injuries to a scheduled injury with a maximum value of 400 weeks based upon the functional impairment rating as determined by a doctor; (4) Sec. 85.35 modifies the rights of both parties to independent medical examinations and provides that an injured worker can only obtain reimbursement for the cost of an independent evaluation if the worker proves the employer should be liable for the injury; (5) Sec. 535.3 modifies the interest rate for past-due benefits from a flat 10 percent to a variable rate based upon the Treasury Maturity Rate plus 2 percent. Changes compensation for “body as a whole” injuries resulting in permanent partial disability so that compensation is paid during the number of weeks in relation to 500 weeks as the reduction in the employee’s earning capacity caused by the disability bears in relation to the earning capacity that the employee had at the time the injury occurred. Creates a presumption of intoxication if a worker tests positive for any amount of drugs or alcohol at the time of injury, and creates a presumption that the intoxication was a substantial factor in causing the injury. Limits when a temporarily disabled worker can raise an objection to offered work based suitability and requires that any objection made be in writing. Signed 3/30/17. Effective Date 7/1/17.
SF 447 Agricultural Operations and Nuisance (CAFO bill). Limits the liability of industrial livestock facilities if they destroy the property value, lives or health of residents around them. Changes the standard of proof from preponderance to clear and convincing evidence. The bill makes the bringing of an ag nuisance case extremely risky for average citizens. This is a major change in nuisance actions. Signed and Effective on 3/29/17.
SF 333 Revised Uniform Fiduciary Access to Digital Assets (RUFADA). The bill relates to the ability of appointed fiduciaries to access, delete, preserve and pass along a person’s digital assets. It provides immunities from liability for data companies (custodian and the custodian’s officers, employees and agents) for acts done in good faith and in compliance with the Act. Signed 4/20/17. Effective Date 7/1/17.
27720 SF 362 Claims Against Fairs. Bars fair participants of spectators from bringing claims against the fair for injuries or death caused by domesticated animal pathogen transmissions unless the participant or spectator can demonstrate that the fair failed to comply with posting requirements required under the bill. This is another immunity provisions. Signed 4/20/17. Effective Date 7/1/17.
SF 376 Asbestos or Silica Exposure. Makes major modifications in the liability of businesses that have manufactured asbestos or silica and restricts claims. Signed 3/23/17. Effective Date 7/1/17.
SF 260 - Liability of possessors and occupants of land to trespassers. The bill provides that a possessor of any fee, reversionary, or easement interest in real property, including but not limited to an owner, lessee, or other lawful occupant, owes no duty of care to a trespasser except to refrain from willfully or wantonly injuring the trespasser and to use reasonable care to avoid injuring the trespasser after that trespasser’s presence becomes known.
SF 404 – Experimental Treatments. This chapter shall not create a private cause of action against a manufacturer of an investigational drug, biological product, or device or against any other person or entity involved in the care of an eligible patient using the investigational drug, biological product, or device for any harm done to the eligible patient resulting from the investigational drug, biological product, or device, if the manufacturer or other person or entity is complying in good faith with the terms of this chapter and has exercised reasonable care.
2018 SF 2135 - Mitigation of Damages for Failure to Wear Seat Belt. Increases the amount that damages can be reduced in litigation where the defense claims that failure to wear a seat belt contributed to injuries from 5% to 25% This modifies legislation passed in 1986 establishes the 5% limitation. Signed on 3/15/18. Effectove 7/1/18.
HF 2442 - Concussion Bill. Makes legislative findings and requires the DPH and the HS associations to work together to develop training materials on concussions/BI. Requires coaches and referees to complete such training every two years. Requires the extracurricular contest officials to have registered with the high school associations. Requires the development of information sheets for parents and guardians. Requires a student to be removed from an extracurricular contest if the student shows any sign of brain injury. Requires the development of return to play/return to learn protocols. Includes provisions on required protective gear. Liability: Adds liability protections for schools that have a licensed health care provider at contests and follows the protocols for the health care provider. Signed 4/26/18. Effective 7/1/18.
HF 2236 - Division of Insurance Matters. A bill for an act relating to service of process made on the commissioner of insurance as the agent or attorney for service of process for regulated individuals and entities and resolving inconsistencies. Allows the Insurance Commissioner to adopt rules for service on the Insurance Commissioner as the agent or attorney for a regulated entity or individual. Signed 3/21/18. Effective 7/1/18.
HF 2238 - Restitution for Insurance Fraud. Defines pecuniary damages to insurers as payments on an insurance claim and allows payments for such claims under criminal restitution provisions for insurance fraud. Signed 3/21/18. Effective 7/1/18. 27821
HF 2371 - Municipality Honeybee Immunity. A bill for an act exempting the state and municipalities from liability for claims involving honeybees on public property. Establishes an exemption from liability under the Municipal Torts Act for honeybee hives that are constructed on city property, so long as the municipality and beehive owner acted reasonably and in good faith. Any municipal entity that acted unreasonably or not in good faith is still subject to liability. Signed 4/17/18. Effective 7/1/18.
HF 2501 - Health and Human Services Appropriations. The legislation prohibits civil actions or awards for damages based on wrongful birth or wrongful life claims. The prohibitions apply to any claim regardless of whether the child is born healthy or with a birth defect or disorder or other adverse medical condition. However, the prohibition does not apply to a civil action for damages for an intentional or grossly negligent act or omission, including any act that constitutes a public offense. This legislation overturns the Iowa Supreme Court decision in Plowman v. Fort Madison Hospital. (See Plowman v Fort Madison Community Hospital, No. 22 15-0974 (June 2, 2017) from the Iowa Supreme Court.) HF 2502 - Standings Appropriations. Section 46 adds new language on expert witnesses in podiatry cases: Sec. 46. Section 147.139, subsections 3 and 4, Code 2018, are amended to read as follows: “3. If the defendant is board-certified in a specialty, the person is certified in the same or a substantially similar specialty by a board recognized by the American board of medical specialties, or the American osteopathic association, or the council on podiatric medical education. a. If the defendant is a licensed physician or osteopathic physician under chapter 148, the person is a physician or osteopathic physician licensed in this state or another state. b. If the defendant is a licensed podiatric physician under chapter 149, the person is a physician, osteopathic physician, or a podiatric physician licensed in this state or another state.” Section 51 clarifies language in the dram shop bill to make sure the cap does not apply to other causes of action. Sec. 51. Section 123.92, subsection 1, paragraph a, Code 2018, as amended by 2018 Iowa Acts, Senate File 2169, section 1, is amended to read as follows: Any Subject to the limitation amount specified in paragraph “c”, if applicable, any third party who is not the intoxicated person who caused the injury at issue and who is injured in person or property or means of support by an intoxicated person or resulting from the intoxication of a person, has a right of action for damages actually sustained, severally or jointly, up to the amount specified in paragraph “c”, against any licensee or permittee, whether or not the license or permit was issued by the division or by the licensing authority of any other state, who sold and served any beer, wine, or intoxicating liquor directly to the intoxicated person, provided that the person was visibly intoxicated at the time of the sale or service. Section 52 adds requirement that the Alcoholic Beverages Division biennially conduct and evaluation on minimum coverage requirements on dram shop. SF 2169 - Dram-Shop Reform. A bill for an act limiting liability of an alcoholic beverage licensee or permittee for certain alcohol related injuries. Limits the liability for certain alcohol- related accidents for some license holders (dram shop act).Changes the limit from an innocent victim to a 3rd party who is not the intoxicated person. Limits the damages to $250,000 in non-economic damages but gives juries the right to award more under specified circumstances (death, serious disfigurement, or a substantial/permanent impairment that
27922 requires a higher award). This limitation is similar to the medical malpractice limitations passed in 2017. Requires biennial studies by the Insurance Commissioner on dram shop liability issues. Signed 4/10/18. Effective 7/1/18.
2019 - SF 570 - Architect Emergency Immunity. This act establishes immunity provisions for licensed architects and professional engineers who perform inspections and other related services at the request of government officials during a declared state of emergency. However, this liability shield from civil damages does not apply if their actions constitute reckless or willful and wanton misconduct. Deems that accepting reimbursement for expenses to not disqualify the architect/engineer. Signed and Effective 5/10/19.
HF 650 - Negligent Hiring. This act relates to the liability of private employers, general contractors, and premises owners for negligently hiring or failing to supervise employees, agents, or independent contractors convicted of a public offense. This act specifies that the tort of negligent hiring/supervision cannot be solely brought due to a prior conviction of an employee of a public offense. The crimes of dependent adult abuse, domestic assaults and other felony assaults are excluded from this act. In addition, it requires the employer or contractor have knowledge of the offense and that the offense was committed while the employee was performing duties similar to the duties for which the employee was hired, including situations where the original offense was fraud and the employee has a fiduciary responsibility. This chapter does not apply to employment of prisoners in prison, nor does it create a cause of action or expand an existing cause of action. Signed 4/17/19. Effective 7/1/19.
SF 377 - Municipal Emergency Tort Act. This act extends immunity from tort liability to certain nonprofit corporations providing emergency response services Municipal Tort Act: Specifically, it extends municipal immunity from torts for various emergency actions, except where specifically authorized by statute, to a non-profit with a contract to provide fire safety and prevention or EMS with political subdivisions of this state. Signed 5/17/19. Effective 7/1/19.
SF 502 - Protecting Employee Complaints/Whistle-blower Protections. This act allows employees of political subdivisions in Iowa to report complaints to the Office of the Ombudsman without fear of reprisal. More specifically, this act authorizes public employees to disclose information to the human resources division and seek injunctive relief to enforce Code provisions against reprisals against employees. Additionally, this law requires that each political subdivision provide procedures for notifying and informing their public employees of the power of the Ombudsman to investigate complaints and be given the toll-free number of the Ombudsman. This act limits civil damages to three times the person’s annual wage and benefits. Requires that employee disclosures be done in good faith for this law to apply to them. Signed 5/10/19. Effective 7/1/19.
SF 507 - Injuries from Falls. This act relates to the definition of personal injuries arising out of and in the course of the employment for the purposes of compensable acts for workers' compensation. Specifically, this act deems that personal injuries from falls onto a level surface from the same level that are unexplained or from idiopathic causes do not arise from employment and are not covered under Worker's Compensation polices. Signed
28023 4/23/19. Effective 7/1/19.
2020 - SF 2259 - Safety Equipment Donation Immunity. This legislation relates to the liability arising from the donation of equipment by a municipality, fire department, emergency medical services provider or law enforcement agency. Specifically,the law provides liability protections to fire departments, EMS agencies and law enforcement agencies who in good faith donate used equipment to another organization. Signed 6/1/20. Effective 7/1/20.
SF 2337 - Asbestos Claims. This legislation relates to civil actions involving asbestos and silica. The legislation requires asbestos/silica plaintiffs to cite specific evidence that forms the basis of the claim against each defendant. Additionally, this bill stipulates what information and protocols that must be provided on worksites, including contacting the additional people exposed and the products to which the worker was exposed and the sellers. Finally, the legislation stipulates that complaints be dismissed, without prejudice, due to the failure of a complaint to meet these requirements. Includes other related provisions.
SF 2338 - Covid-19 Immunity/ Medical Expenses Evidence. This legislation relates to civil actions, including coverable damages for medical expenses, evidence offered to prove past medical expenses, and civil actions related to the novel coronavirus. • Medical Expenses: This legislation contains language regarding the use of medical expenses in evidence and recoverable damages for medical expense in civil cases. Specifically, the bill limits the use of medical expense evidence to the amount of money billed and paid to the provider, the amount of money not covered by insurance, and the amount of money still owed. Additionally, the legislation stipulates that parties do not have a duty to seek a reduction in billed costs. • Covid-19 Liability Shield: This legislation was a direct result of legislative concerns for property owners, businesses, and employers in the wake of the covid-19 pandemic. • Cause of Action: Defines the minimum medical condition for a cause of action as a COVID-19 diagnosis that requires in-patient hospitalization or death. This definition excludes doctor visits and all other medical including emergency room visits. • Safe Harbor Provision: Extends safe harbor protections from liability for employers who comply substantially with public health rules or statutes, as well as for manufacturers of PPE, except for reckless or malicious acts done with actual knowledge of defects. • Premise Liability Shield: This law establishes a premise liability protection for Covid-19 related injuries. Specifically, persons in control of a premises— “shall not be liable for civil damages for any injuries unless one of the following applies: recklessly disregards risk; exposes persons with actual malice; or exposes with intention to infect. • Healthcare Provider Liability Protection:. Includes liability protections for health care providers treating persons with COVID-19 and for other health care matters related to the pandemic unless the healthcare provider acted recklessly or with willful misconduct. Signed and Effective 6/18/20. Retroactive 1/1/20.
28124 SF 2360 - Addressing Classroom Behavior/School Immunity. School Immunity: This legislation grants immunity from civil liability for a school district and the board of directors, and for non-public schools, for physical contact between a student and school employee that is covered by immunity provisions for the school employee. Finally this bill prohibits a school employer and the board of educational examiners from retaliating against an employee who in the reasonable course of the employee’s employment responsibilities comes into physical contact with a student. Signed 6/29/20. Effective 6/1/2021.
SF 2296 - Independent Truckers. This legislation defines the owner-operator of a vehicle as an independent contractor when the owner-operator meets certain conditions for owning the vehicle and uses that definition for current exclusions from worker’s comp and employer liability insurance, wage payment and minimum wage and other matters. The ISBA registered undecided on the legislation. Signed 6/18/20. Effective 7/1/20.
Prepared by: Jim Carney/Doug Struyk/Jenny Dorman Legislative Counsel, Iowa State Bar Association 303 Locust Street, Suite 400 Telephone: 515-282-6803 Des Moines, IA 50309-1770 Fax: 515-282-4700
E-mail: [email protected] [email protected] [email protected]
Updated: August 2020
28225 Bill NumberTitle Last Action Position HF164 A bill for an act relating to the inclusion of the Subcommittee value of child restraint systems in the partial loss recommends calculation for specified insurance settlements passage. Vote Total: of first-party automobile partial losses and Subcommittee3-0 HF167 Aincluding bill for an applicability act relating provisions. to seizure disorders and recommends establishing certain requirements for school passage. Vote Total: districts, accredited nonpublic schools, and the 2-0 HF172 Adepartment bill for an act of education.relating to the proper parties in Introduced, referred an action, and providing penalties. to Judiciary. H.J. 183. HF173 A bill for an act relating to the application of Introduced, referred foreign laws and constitutional rights and to Judiciary. H.J. 183. HF258 Aincluding bill for an effective act relating date provisions.to the financial Subcommittee: exploitation of designated eligible adults, and Deyoe, Hall and making an appropriation.(Formerly HSB 113.) Latham. H.J. 255. Monitor HF273 A bill for an act providing for an exemption from Subcommittee: tort liability arising from winter recreational Lohse, Meyer, B. and activities on commercial property. Salmon. H.J. 438. HF303 A bill for an act relating to confidential communications between a peer support group Introduced, placed on counselor and specified individuals.(Formerly HF calendar. H.J. 243. HF304 A64.) bill for an act relating to personal delivery Subcommittee: devices, providing penalties, and making Brown, Lykam, and penalties applicable. (Formerly HSB 25.) Williams. S.J. 313. HF341 A bill for an act relating to the statute of Introduced, referred limitations for recovery from injuries sustained Subcommittee:to Judiciary. H.J. 276. HF350 Afrom bill treatmentfor an act relating for identity to automobile disorder. insurance Nordman, McConkey required for transportation network company and Westrich. H.J. drivers. 320. HF449 A bill for an act extending the limitation of Introduced, referred certain criminal actions committed on or with to Judiciary. H.J. 327. HF456 Aminors. bill for an act creating a special motion for expedited relief in actions involving the exercise Read first time, of the right of freedom of speech and of the referred to Judiciary. press, the right to assemble and petition, and S.J. 398. Support the right of association.(Formerly HSB 58.)
283 HF585 A bill for an act relating to the establishment and implementation of the safe and sound program within the department of public safety, to participation in or use of the program by schools and students, to immunity from civil or Introduced, placed on criminal liability arising from a report made calendar. H.J. 448. HF592 Apursuant bill for an to actthe relatingprogram, to and noneconomic to a safe and Introduced, placed on damage awards against health care Subcommitteecalendar. H.J. 474. Oppose HSB12 Aproviders.(Formerly bill for an act relating HF 517.) to judicial motions and recommends causes of action arising from a person's Subcommitteepassage. Monitor HSB25 Aparticipation bill for an act in relatingmatters toof personalpublic significance. delivery recommends devices, providing penalties, and making passage. Vote Total: penalties applicable.(See HF 304.) 3-0 HSB58 A bill for an act creating a special motion for Committee report, expedited relief in actions involving the exercise recommending of the right of freedom of speech and of the amendment and press, the right to assemble and petition, and passage. H.J. 322. Support HSB76 Athe bill right for anof association.(Seeact relating to the HF establishment 456.) and implementation of the safe and sound program within the department of public safety, Committee report to participation in or use of the program by approving bill, schools and students, to immunity from civil or renumbered as HF criminal liability arising from a report made 585. HSB84 Apursuant bill for an to actthe relatingprogram, to and authorized to a safe and Subcommittee: emergency vehicles, making penalties Worthan, Gerhold applicable, and including effective date and and Konfrst. H.J. 125. HSB116 Aapplicability bill for an act provisions. establishing which actions may Committee report, be brought against firearm and ammunition recommending manufacturers, distributors, importers, trade amendment and associations, sellers, or dealers. Subcommittee:passage. H.J. 491. HSB123 A bill for an act relating to midwife licensure, Kaufmann, providing for fees, and making penalties Bloomingdale, applicable. Konfrst, Lundgren and Mascher. H.J. 177.
284 HSB170 A bill for an act providing that a licensed Committee report, veterinarian is immune from administrative, recommending civil, or criminal liability in investigations or Subcommitteepassage. H.J. 490. Monitor HSB190 Aproceedings bill for an act involving relating the to mistreatment authorized of recommends emergency vehicles, making penalties passage. Vote Total: applicable, and including effective date and Subcommittee2-0 HSB205 Aapplicability bill for an act provisions. relating to private land available Meeting: 02/24/2021 for public use for recreational purposes. 8:00AM House Lounge #1. HSB208 A bill for an act relating to the statute of Subcommittee limitations for recovery from injuries to a person Meeting: 02/23/2021 or property from a licensed veterinarian. 8:00AM Law Library. HSB217 A bill for an act relating to tort liability, including Subcommittee employer liability in actions arising from an Meeting: 02/22/2021 employee's negligence, punitive or exemplary 11:00AM House damages, and noneconomic damages available Lounge. Oppose SF72 Aagainst bill for operators an act relating of motor to authorized vehicles. Committee report emergency vehicles, making penalties approving bill, applicable, and including effective date and renumbered as SF applicability provisions.(See SF 333.) 333. S.J. 340. Monitor SF221 A bill for an act relating to sexual harassment in Subcommittee employment and working relationships, and reassigned: Schultz, including effective date provisions. Brown, and Celsi. S.J. 299. SF236 A bill for an act relating to documentation Subcommittee required to be carried in a motor vehicle, recommends including vehicle registration cards and proof of Committeepassage. report, SF307 Afinancial bill for anliability act relating coverage to cards,the examination and including and approving bill. S.J. transportation of dead bodies, including 314. SF324 Aassociated bill for an fees act creatingand costs.(Formerly a civil remedy SF 106.)for the disclosure of private, sexually explicit images Amendment S-3023 without consent of the depicted filed. S.J. 351. Support SF333 Aindividual.(Formerly bill for an act relating SSB to1053.) authorized Committee report, emergency vehicles, making penalties approving bill. S.J. applicable, and including effective date and 340. Monitor applicability provisions.(Formerly SF 72.)
285 SF340 A bill for an act relating to the statute of Committee report, limitations for recovery from injuries to a person approving bill. S.J. or property from a licensed 335. SF344 Aveterinarian.(Formerly bill for an act establishing SSB 1090.) which actions may Subcommittee: be brought against firearm and ammunition Schultz, Bisignano, manufacturers, distributors, importers, trade Committeeand Zaun. S.J. report, 390. Monitor SF356 Aassociations, bill for an act sellers, limiting or dealers. civil liability for persons approving bill. S.J. involved in agricultural tourism.(Formerly SSB Committee333. report, SF361 A1153.) bill for an act concerning private sector approving bill. S.J. employee drug testing.(Formerly SSB 1055.) Committee349. report, SF420 A bill for an act relating to private land available approving bill. S.J. for public use for recreational Committee409. report Monitor SSB1055 Apurposes.(Formerly bill for an act concerning SSB 1155.) private sector approving bill, employee drug testing.(See SF 361.) renumbered as SF 361. Monitor SSB1058 A bill for an act relating to personal delivery Subcommittee devices, providing penalties, and making recommends penalties applicable. amendment and passage. SSB1070 A bill for an act relating to the establishment and implementation of the safe and sound program within the department of public safety, to participation in or use of the program by Subcommittee schools and students, to immunity from civil or Meeting: 02/02/2021 criminal liability arising from a report made 3:00PM RM 24A. Monitor SSB1101 Apursuant bill for an to actthe concerningprogram, and jurors, to a relating safe and to access to certain department of revenue Subcommittee taxpayer information for jury list compilation recommends and juror information confidentiality, and Committeepassage. report SSB1131 Aincluding bill for an effective act relating date provisions.to the financial approving bill, exploitation of designated eligible adults, and renumbered as SF making an appropriation.(See SF 391.) Committee391. report Monitor SSB1153 A bill for an act limiting civil liability for persons approving bill, involved in agricultural tourism.(See SF 356.) renumbered as SF 356.
286 Committee report SSB1155 A bill for an act relating to private land available approving bill, for public use for recreational purposes.(See SF renumbered as SF 420.) 420. SSB1178 A bill for an act relating to qualified immunity of Subcommittee law enforcement officers, the peace officer, Meeting: 02/18/2021 public safety, and emergency personnel bill of 10:00AM 217 rights, and protected information of law Conference Room. SSB1210 Aenforcement bill for an act officers relating and to state tort liability,or federal including Subcommittee employer liability in actions arising from an Meeting: 02/23/2021 employee's negligence, punitive or exemplary 11:30AM 217 damages, and noneconomic damages available Conference Room. Oppose against operators of motor vehicles.
287 Section 3
A.
Ethical Challenges in Mediation
Jeff Boehlert, Des Moines Mark S. Brownlee, Des Moines
288 ETHICAL CHALLENGES IN MEDIATION
JEFF BOEHLERT AND MARK BROWNLEE BOEHLERT BROWNLEE ADR
EFFECT OF COVID-19 ON MEDIATION PROCESS
• Number of mediations
• Timing of mediations
• Effect of Covid-19 on settlement expectations
• More arbitrations as an alternative to trial?
PRE-MEDIATION PROCESS
• Position statements • provide to opposing counsel?
• What materials are helpful? • how much is too much?
• Pre-mediation communication between counsel and mediator • purpose? •ethical? • how much is too much?
MEDIATION PROCESS
• Zoom v. in person • advantages/disadvantages
• Post-Covid, will Zoom become the exception or the rule?
• Attendance/participation by claim reps • require?
• Joint conference remarks by counsel • frequency? • helpful or hurtful to process?
289 • Role of mediator when counsel clearly misunderstands or misstates the law • appropriate to intervene? • ethical?
• Post-mediation communication in cases not settled during "formal" mediation process • ethical?
• Memorandum of Understanding • contents
• Biggest impediments to successful mediations
290 IOWA COURT RULE 11 (copy attached)
Rule 11.1 SCOPE
Rule 11.2 SELF-DETERMINATION
Rule 11.3 IMPARTIALITY
Rule 11.4 CONFLICTS OF INTEREST
Rule 11.5 COMPETENCE
Rule 11.6 CONFIDENTIALITY
Rule 11.7 QUALITY OF THE PROCESS
Rule 11.8 ADVERTISING AND SOLICITATION
Rule 11.9 FEES AND OTHER CHARGES
Rule 11.10 ADVANCEMENT OF MEDIATION PRACTICE
IOWA CODE CHAPTER 679C (copy attached) (selected provisions)
679C.104 PRIVILEGE AGAINST DISCLOSURE-ADMISSIBILITY- DISCOVERY
679C.105 WAIVER AND PRECLUSION OF PRIVILEGE
679C.106 EXCEPTIONS TO PRIVILEGE
679C.107 PROHIBITED MEDIATOR REPORTS
679C.108 CONFIDENTIALITY
679C.109 MEDIATOR'S DISCLOSURE OF CONFLICTS OF INTEREST- BACKGROUND
679C.115 MEDIATOR IMMUNITY
291 IOWA COURT RULE 11
Rule 11.1 Scope. These standards apply to mediators who are lawyers licensed to practice law in Iowa, mediators who participate in any mediation program approved by a court of this state, and mediators in any matter an Iowa court order or rule requires to be mediated. [Court Order November 10, 2011, effective January 1, 2012]
Rule 11.2 Self-determination. 11.2(1) A mediator shall conduct a mediation based on the principle of party self- determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes. a. Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process in accordance with these standards. b. A mediator cannot personally ensure that each party has made free and informed choices to reach particular decisions, but where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help the parties make informed choices. 11.2(2) A mediator shall not undermine any party’s self-determination for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media, or others. [Court Order November 10, 2011, effective January 1, 2012]
Rule 11.3 Impartiality. 11.3(1) A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias, or prejudice. 11.3(2) A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality. a. A mediator should not act with partiality or prejudice based on any participant’s personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason. b. A mediator should neither give nor accept a gift, favor, loan, or other item of value that raises a question as to the mediator’s actual or perceived impartiality. c. A mediator may accept or give de minimis gifts or incidental items or services that are provided to facilitate mediation or respect cultural norms so long as such practices do not raise questions as to a mediator’s actual or perceived impartiality. 11.3(3) If at any time a mediator is unable to conduct a mediation in an impartial manner, the mediator shall withdraw. [Court Order November 10, 2011, effective January 1, 2012]
292
Rule 11.4 Conflicts of interest. 11.4(1) A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest that reasonably raises a question of a mediator’s impartiality can arise from a mediator’s involvement with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional. 11.4(2) A mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. A mediator’s actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on practice context. 11.4(3) A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation. 11.4(4) If a mediator learns any fact after accepting a mediation that raises a question with respect to that mediator’s service creating a potential or actual conflict of interest, the mediator shall disclose it to all parties as quickly as practicable. After disclosure, if all parties agree, the mediator may proceed with the mediation. 11.4(5) If a mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary. 11.4(6) Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in any matter that would raise questions about the integrity of the mediation. When a mediator develops personal or professional relationships with parties, other individuals, or organizations following a mediation in which the parties, individuals, or organizations were involved, the mediator should consider factors such as time elapsed following the mediation, the nature of the relationships established, and services offered when determining whether the relationships might create a perceived or actual conflict of interest. [Court Order November 10, 2011, effective January 1, 2012]
Rule 11.5 Competence. 11.5(1) A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties. a. Any person may be selected as a mediator, provided that the parties are satisfied with the mediator’s competence and qualifications. Training, experience in mediation, skills, cultural understandings, and other qualities are often necessary for mediator competence. A person who offers to serve as a mediator creates the expectation that the person is competent to mediate effectively. b. A mediator should attend educational programs and related activities to maintain and enhance the mediator’s knowledge and skills related to mediation. c. A mediator should have available for the parties information relevant to the mediator’s training, education, experience, and approach to conducting a mediation. 11.5(2) If a mediator, during the course of a mediation, determines that the mediator cannot conduct the mediation competently, the mediator shall discuss that determination with the
293 parties as soon as is practicable and take appropriate steps to address the situation, including, but not limited to, withdrawing or requesting appropriate assistance. 11.5(3) If a mediator’s ability to conduct a mediation is impaired by drugs, alcohol, or medication, or is otherwise impaired, the mediator shall not conduct the mediation. [Court Order November 10, 2011, effective January 1, 2012]
Rule 11.6 Confidentiality. 11.6(1) A mediator shall maintain the confidentiality of all information the mediator obtains in mediation, unless the parties otherwise agree or as required by applicable law. a. If the parties to a mediation agree, the mediator may disclose information obtained during the mediation. b. A mediator should not communicate to any non-participant information about how the parties acted in the mediation. A mediator may report, if required, whether parties appeared at a scheduled mediation and whether or not the parties reached a resolution. c. If a mediator participates in teaching, research, or evaluation of mediation, the mediator should protect the anonymity of the parties and abide by their reasonable expectations regarding confidentiality. 11.6(2) A mediator who meets with any persons in private session during a mediation shall not convey directly or indirectly to any other person any information that was obtained during that private session without the consent of the disclosing person. 11.6(3) A mediator shall promote understanding among the parties of the extent to which the parties will maintain confidentiality of information they obtain in a mediation. 11.6(4) Depending on the circumstance of a mediation, the parties may have varying expectations regarding confidentiality that a mediator should address. The parties may make their own rules with respect to confidentiality, or the accepted practice of an individual mediator or institution may dictate a particular set of expectations. [Court Order November 10, 2011, effective January 1, 2012]
Rule 11.7 Quality of the process. 11.7(1) A mediator shall conduct a mediation in accordance with these standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency, and mutual respect among all participants. a. A mediator should agree to mediate only when the mediator is prepared to commit the attention essential to an effective mediation. b. A mediator should only accept cases when the mediator can satisfy the reasonable expectations of the parties concerning the timing of a mediation. c. The presence or absence of persons at a mediation depends on the agreement of the parties and the mediator. The parties and mediator may agree that others may be excluded from particular sessions or from all sessions. d. A mediator should promote honesty and candor between and among all participants, and a mediator shall not knowingly misrepresent any material fact or circumstance in the course of a mediation.
294 e. The role of a mediator differs substantially from other professional roles. Mixing the role of a mediator and the role of another profession is problematic and thus, a mediator should distinguish between the roles. A mediator may provide information that the mediator is qualified by training or experience to provide only if the mediator can do so consistent with these standards. f. A mediator shall not conduct a dispute resolution procedure other than mediation but label it mediation in an effort to gain the protection of rules, statutes, or other governing authorities pertaining to mediation. g. A mediator may recommend, when appropriate, that parties consider resolving their dispute through arbitration, counseling, neutral evaluation, or other processes. h. A mediator shall not undertake an additional dispute resolution role in the same matter without the consent of the parties. Before providing such service, a mediator shall inform the parties of the implications of the change in process and obtain their consent to the change. A mediator who undertakes such role assumes different duties and responsibilities that may be governed by other standards. i. If a mediation is being used to further criminal conduct, a mediator should take appropriate steps including, if necessary, postponing, withdrawing from, or terminating the mediation. j. If a party appears to have difficulty comprehending the process, issues, or settlement options, or difficulty participating in a mediation, the mediator should explore the circumstances and potential accommodations, modifications, or adjustments that would make possible the party’s capacity to comprehend, participate, and exercise self-determination. 11.7(2) If a mediator is made aware of domestic abuse or violence among the parties, the mediator shall take appropriate steps including, if necessary, postponing, withdrawing from, or terminating the mediation. 11.7(3) If a mediator believes that participant conduct, including that of the mediator, jeopardizes conducting a mediation consistent with these standards, a mediator shall take appropriate steps including, if necessary, postponing, withdrawing from, or terminating the mediation. [Court Order November 10, 2011, effective January 1, 2012]
Rule 11.8 Advertising and solicitation. 11.8(1) A mediator shall be truthful and not misleading when advertising, soliciting, or otherwise communicating the mediator’s qualifications, experience, services, and fees. a. A mediator should not include any promises as to outcome in communications, including business cards, stationery, or computer-based communications. b. A mediator should only claim to meet the mediator qualifications of a governmental entity or private organization if that entity or organization has a recognized procedure for qualifying mediators and it grants such status to the mediator. 11.8(2) A mediator shall not solicit in a manner that gives an appearance of partiality for or against a party or otherwise undermines the integrity of the process. 11.8(3) A mediator shall not communicate to others, in promotional materials or through other forms of communication, the names of persons served without their permission. [Court Order November 10, 2011, effective January 1, 2012]
295
Rule 11.9 Fees and other charges. 11.9(1) A mediator shall provide each party or each party’s representative true and complete information about mediation fees, expenses, and any other actual or potential charges that may be incurred in connection with a mediation. a. If a mediator charges fees, the mediator should develop them in light of all relevant factors, including the type and complexity of the matter, the qualifications of the mediator, the time required, and the rates customary for such mediation services. b. A mediator’s fee arrangement should be in writing unless the parties request otherwise. 11.9(2) A mediator shall not charge fees in a manner that impairs a mediator’s impartiality. a. A mediator should not enter into a fee agreement that is contingent upon the result of the mediation or amount of the settlement. b. While a mediator may accept unequal fee payments from the parties, a mediator should not allow such a fee arrangement to impact adversely the mediator’s ability to conduct a mediation in an impartial manner. [Court Order November 10, 2011, effective January 1, 2012]
Rule 11.10 Advancement of mediation practice. 11.10(1) A mediator should act in a manner that advances the practice of mediation. A mediator promotes this standard by engaging in some or all of the following: a. Fostering diversity within the field of mediation. b. Striving to make mediation accessible to those who elect to use it, including providing services at a reduced rate or on a pro bono basis as appropriate. c. Participating in research when given the opportunity, including obtaining participant feedback when appropriate. d. Participating in outreach and education efforts to assist the public in developing an improved understanding of, and appreciation for, mediation. e. Assisting newer mediators through training, mentoring, and networking. 11.10(2) A mediator should demonstrate respect for differing points of view within the field, seek to learn from other mediators, and work with other mediators to improve the profession and better serve people in conflict. [Court Order November 10, 2011, effective January 1, 2012]
296 IOWA CODE 679C
679C.104 Privilege against disclosure — admissibility — discovery. 1. Except as otherwise provided in section 679C.106, a mediation communication is privileged as provided in subsection 2 and is not subject to discovery or admissible in evidence in a proceeding unless the privilege is waived or precluded as provided by section 679C.105. 2. In a proceeding, the following privileges shall apply: a. A mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication. b. A mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator. c. A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant. 3. Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation. 2005 Acts, ch 68, §9; 2006 Acts, ch 1010, §158 Referred to in §679C.103, 679C.105, 679C
679C.105 Waiver and preclusion of privilege. 1. A privilege under section 679C.104 may be waived in a record or orally during a proceeding if it is expressly waived by all mediation parties and if all of the following apply: a. In the case of the privilege of a mediator, the privilege is expressly waived by the mediator. b. In the case of the privilege of a nonparty participant, the privilege is expressly waived by the nonparty participant. 2. A person that discloses or makes a representation about a mediation communication which prejudices another person in a proceeding is precluded from asserting a privilege under section 679C.104, but only to the extent necessary for the person prejudiced to respond to the disclosure or representation. 3. A person that intentionally uses a mediation to plan, to attempt to commit, or to commit a crime, or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege pursuant to section 679C.104. 2005 Acts, ch 68, §10 Referred to in §679C.103, 679C.104
679C.106 Exceptions to privilege. 1. No privilege exists under section 679C.104 for a mediation communication that involves any of the following: a. An agreement evidenced by a record signed by all mediation parties to the agreement. b. A communication that is available to the public under chapter 22 or made during a session of a mediation which is open, or is required by law to be open, to the public. c. A threat or statement of a plan to inflict bodily injury or commit a crime of violence. d. A plan to commit or attempt to commit a crime, the commission of a crime, or activity to conceal an ongoing crime or ongoing criminal activity. e. A communication that is sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator. f. Except as otherwise provided in subsection 3, a communication that is sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a mediation party based on conduct occurring during a mediation. g. A communication that is sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult
297 protective services agency is a party, unless the child or adult protection case is referred by a court to mediation and a public agency participates. 2. There is no privilege under section 679C.104 if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in any of the following situations: a. A court proceeding involving a felony or misdemeanor. b. Except as otherwise provided in subsection 3, a proceeding to prove a claim to rescind or reform a contract or a defense to avoid liability on a contract arising out of the mediation. 3. A mediator shall not be compelled to provide evidence of a mediation communication referred to in subsection 1, paragraph “f”, or subsection 2, paragraph “b”. 4. If a mediation communication is not privileged under subsection 1 or 2, only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under subsection 1 or 2 does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose. 2005 Acts, ch 68, §11 Referred to in §679C.103, 679C.104, 679C.107
679C.107 Prohibited mediator reports. 1. Except as required in subsection 2, a mediator shall not make a report, assessment, evaluation, recommendation, finding, or other communication regarding a mediation to a court, administrative agency, or other authority that may make a ruling on the dispute that is the subject of the mediation. 2. A mediator may disclose any of the following: a. Whether the mediation occurred or has terminated, whether a settlement was reached, and attendance. b. A mediation communication as permitted under section 679C.106. c. A mediation communication evidencing abuse, neglect, abandonment, or exploitation of an individual to a public agency responsible for protecting individuals against such mistreatment. 3. A communication made in violation of subsection 1 shall not be considered by a court, administrative agency, or arbitrator. 2005 Acts, ch 68, §12
679C.108 Confidentiality. Unless subject to chapter 21 or 22, mediation communications are confidential to the extent agreed to by the parties or provided by other law or rule of this state. 2005 Acts, ch 68, §13 Referred to in §13.14, 216.15B, 654A.13
679C.109 Mediator’s disclosure of conflicts of interest — background. 1. Before accepting a mediation, an individual who is requested to serve as a mediator shall do all of the following: a. Make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a mediation party or foreseeable participant in the mediation. b. Disclose any such known fact to the mediation parties as soon as is practicable before accepting a mediation. 2. If a mediator learns any fact described in subsection 1 after accepting a mediation, the mediator
298 shall disclose it as soon as is practicable. 3. At the request of a mediation party, an individual who is requested to serve as a mediator shall disclose the mediator’s qualifications to mediate a dispute. 4. A person that violates subsection 1, 2, or 7 is precluded by the violation from asserting a privilege under section 679C.104. 5. Subsections 1, 2, 3, and 7 do not apply to an individual acting as a judge. 6. This chapter does not require that a mediator have a special qualification by background or profession. 7. A mediator must be impartial, unless after disclosure of the facts required in subsections 1, 2, and 3 to be disclosed, the parties agree otherwise. 2005 Acts, ch 68, §14; 2006 Acts, ch 1030, §79
679C.115 Mediator immunity. A mediator or a mediation program shall not be liable for civil damages for a statement, decision, or omission made in the process of mediation unless the act or omission by the mediator or mediation program is made in bad faith, with malicious purpose, or in a manner exhibiting willful or wanton disregard of human rights, safety, or property. This section shall apply to mediation conducted before the workers’ compensation commissioner and mediation conducted pursuant to chapter 216. 2005 Acts, ch 68, §20
299 Section 3
B.
Appellate Panel
Judge Sharon Soorholtz Greer, Iowa Court of Appeals Judge David May, Iowa Court of Appeals Judge Julie Schumacher, Iowa Court of Appeals Judge Paul B. Ahlers, Iowa Court of Appeals
300 TIPS FROM THE IOWA COURT OF APPEALS FOR SUCCESSFUL ADVOCACY 2021 IOWA ACADEMY OF TRIAL LAWYERS ANNUAL MEETING PANEL: JUDGES: David May, Sharon Soorholtz Greer, Julie Schumacher and Paul Ahlers
Mission of the Court “The principal role of the court of appeals is to dispose justly of a high volume of cases.” Iowa Ct. R. 21.11. General observations, suggestions and tips: A. The Briefs.
Common mistakes. Using or abusing the record in the brief. Standard of Review and Preservation of Error concerns. Organization of the argument. Other content issues. Best practices. Attorney fee requests.
B. Oral Arguments.
Effective oral argument and what wastes your precious time. Demeanor and other presentation tips. Oral arguments in the pandemic – best practices.
C. After 2020 - Court Update.
Year Transfers Opinions filed
2015 1118 1199 2016 1440 1389 2017 1334 1298 2018 1224 1223 2019 1234 1165 2020 1056 1170
301 Section 3
C.
Case Law Update
Judge Paul B. Ahlers, Iowa Court of Appeals
302 IOWA CASE LAW UPDATE
PAUL B. AHLERS* Iowa Court of Appeals [email protected]
(Covering volumes 933 to 952+1 of the Northwestern Reporter, Second Series)
TABLE OF CONTENTS
ADMINISTRATIVE LAW ...... 2 APPELLATE PROCEDURE ...... 3 ATTORNEY DISCIPLINE ...... 3 CIVIL PROCEDURE ...... 11 COMMERCIAL LAW ...... 15 CONSTITUTIONAL LAW ...... 15 CONTRACTS ...... 15 CORPORATIONS ...... 16 CRIMINAL LAW ...... 17 CRIMINAL PROCEDURE ...... 21 DEBTOR / CREDITOR ...... 35 DIVORCE / FAMILY LAW ...... 36 EMPLOYMENT ...... 38 EVIDENCE ...... 39 INSURANCE ...... 44 JUVENILE ...... 45 MISCELLANEOUS ...... 47 MOTOR VEHICLES / OWI ...... 48 MUNICIPAL CORPORATIONS ...... 49 PROBATE / GUARDIANSHIP / CONSERVATORSHIP / ELDER ...... 50 REAL PROPERTY / LANDLORD – TENANT ...... 50 SEARCH AND SEIZURE ...... 51 TAXATION ...... 53 TORTS ...... 53 WORKER’S COMPENSATION ...... 56
* Reid Shepard, court of appeals law clerk for Judge Ahlers, provided a great deal of assistance in creation of this outline with regard to cases in volumes 933 to 935 of the Northwestern Reporter, 2d, by summarizing many of the cases in those volumes to enable completion of this outline for the seminar. Any mistakes contained herein are attributable to Judge Ahlers and not Mr. Shepard. 1 Current through supreme court filings on February 5, 2021.
303 ADMINISTRATIVE LAW
Discipline by Confidential Letter of Warning Irland v. Iowa Board of Medicine, 939 N.W.2d 85 (Iowa 2020) The board lacks authority to impose discipline through a “confidential letter of warning” without finding probable cause of a violation and without giving the physician an opportunity to challenge the alleged violation. Since the warning letter effectively imposed discipline by requiring the physician to get a competency evaluation before returning to the practice of medicine, the board circumvented the due process safeguards and public reporting requirements set forth in the governing statute. Likewise, because the letter effectively imposed discipline, Iowa Code section 272C.3(1)(d) – which precludes judicial review when the board determines an investigation is not warranted or an investigation should close – did not apply to preclude judicial review.
Service by Fax Logan v. Bon Ton Stores, Inc., 943 N.W.2d 7 (Iowa 2020) In a 4-2 decision, timely faxing a petition for judicial review of a workers’ compensation decision to the opposing party’s counsel, where the petition is actually received and no prejudice results, constitutes substantial compliance with Iowa Code section 17A.19(2).
Standing to Challenge Donation Information Dickey v. Iowa Ethics & Campaign Disclosure Bd., 943 N.W.2d 34 (Iowa 2020) A private citizen filed a complaint with the ethics and campaign disclosure board claiming the Governor’s campaign committee underreported a campaign contribution. He appealed the dismissal of his complaint. In a 5-1 decision, the court held a private citizen is not an “aggrieved or adversely affected” party within the meaning of section 17A.19. While parties who allege they are missing information that the campaign laws require to be disclosed may have standing, the complaining party in this case does not allege he is lacking any relevant information. He merely voiced a disagreement over the reporting method used by the candidate committee. Therefore, he did not have standing.
Recoupment of DHS Payment Pending Appeal Endress v. Iowa Dept. of Human Services, 944 N.W.2d 71 (Iowa 2020) Pfaltzgraff v. Iowa Dept. of Human Services, 944 N.W.2d 112 (Iowa 2020) The DHS sought to recoup payments made for child-care services rendered by the childcare provider during agency review of the providers’ canceled provider agreements. In 6-1 portions of the decisions, the DHS notice of potential recoupment
304 met procedural due process requirements and the DHS was not liable for the childcare providers’ attorney fees because the DHS’s role was “primarily adjudicative.” In a 4- 3 portion of the rulings, the DHS erred in refusing to consider the childcare providers’ unjust-enrichment defense to the recoupment proceeding.
APPELLATE PROCEDURE
State Authority to Directly Appeal Magistrate Ruling State v. Stanton, 933 N.W.2d 244 (Iowa 2019) State was not required to appeal magistrate’s sua sponte dismissal of complaints to district court pursuant to Iowa Rule of Criminal Procedure 2.73 before seeking discretionary review. Since the dismissal was a final judgment and was not based on a finding that a statute or ordinance was invalid, the State had authority to seek discretionary review directly with the supreme court.
No Piecemeal Appeals Freer v. DAC, Inc., 951 N.W.2d 6 (Iowa 2020) In a previous appeal, the supreme court dealt with the aftermath of the parties “high- low” settlement agreement during trial. After a defense verdict, Freer filed post-trial motions seeking a new trial and DAC filed motions to enforce the high-low agreement. The supreme court held the district court lost jurisdiction to rule on posttrial motions the moment Freer filed notice of appeal and a nunc pro tunc order did not fix that issue. As a result, the district court’s original order approving the defense verdict stood. After that ruling, Freer filed a motion seeking to enforce the high-low agreement. The district court denied the motion and Freer appealed. The court held the new appeal was an attack on the same order that it had already affirmed on the first appeal, just asserting different grounds. The court reiterated that appeals cannot be done in piecemeal fashion. Since Freer made no attack on the judgment that could not have been made in the prior appeal, the judgment was affirmed again. However, the court offered no comment or opinion “about any rights or defenses concerning enforcement of the high-low agreement that might be brought in a separate action.”
ATTORNEY DISCIPLINE
Lack of Diligence and Communication Supreme Ct. Atty. Disciplinary Bd. v. Noel, 933 N.W.2d 190 (Iowa 2019) Public reprimand for multiple violations. Violations included: (1) failing to abide by client decisions by neglecting to file suit as agreed; (2) failing to handle the client’s matters in a reasonably timely manner by not filing suit as agreed, not making
305 required initial disclosures, not filing proposed jury instructions as ordered, and not producing timely discovery responses; (3) failing to keep the client reasonably informed by not responding to client request for information, not informing the client of the necessity of providing timely discovery responses, and not explaining the ramifications of a motion for sanctions filed by the opposing party; (4) failing to make reasonably diligent effort to comply with proper discovery requests; and (5) engaging in conduct prejudicial to the administration of justice by neglectful and untimely handling of discovery matters resulting in additional court proceedings and delays. Prior discipline was not an aggravating factor because the discipline had not been imposed at the time the violations occurred in this case. Since the other discipline resulted in a one-year suspension, no additional suspension was warranted and a public reprimand was issued.
Misappropriation of Client Funds Supreme Ct. Atty. Disciplinary Bd. v. Earley, 933 N.W.2d 206 (Iowa 2019) Revocation for misappropriating client funds with no colorable future claim to the funds by taking money from trust account for personal purposes. Additional violations included neglecting the client matters that had generated the trust account funds the attorney misappropriated, violating trust account practices by withdrawing unearned fees, and not notifying clients of the withdrawals. Mitigating factors do not come into play in a conversion case such as this.
OWI, Domestic Abuse Assault, & NCO Violations Supreme Ct. Atty. Disciplinary Bd. v. Sears, 933 N.W.2d 214 (Iowa 2019) Two-year suspension for conduct resulting in conviction for operating while intoxicated, conviction for domestic abuse assault causing bodily injury, and several violations of a no-contact order even though the attorney was not charged with the no-contact order violations. Aggravating factors included multiple no-contact order violations, violation of terms of probation, commission of a crime and violation of the no-contact order while on probation, false testimony to the commission, and a demonstrated lack of remorse. Mitigating factor was lack of prior discipline (although not weighted heavily due to violations starting five months after admission to the bar).
Theft of Fees Belonging to Law Firm Supreme Ct. Atty. Disciplinary Bd. v. Den Beste, 933 N.W.2d 251 (Iowa 2019) In a 6-1 decision, four-month suspension for theft of firm’s funds by keeping cash payments from client rather than depositing them with the firm for distribution pursuant to the agreement between the attorney and the firm and engaging in dishonesty to cover up the theft. Warning given that future cases involving theft from a law firm without a colorable claim may incur stiffer sanctions. Dissenter argued for revocation.
306 Depositing Expense Retainer in Personal Bank Account Supreme Ct. Atty. Disciplinary Bd. v. Muhammad, 935 N.W.2d 24 (Iowa 2019) Although the attorney disputed the facts, the court found a client paid the attorney a $7500 retainer for expenses for a personal injury/civil rights case the parties agreed would be handled on a contingency fee basis. The attorney deposited the funds in her personal bank account. The contingency case never proceeded due to a breakdown in the relationship. The attorney did not return the money and was unable to account for it, even though no expenses had been incurred on the case. Since the attorney had no colorable present or future claim offsetting her misappropriation of the funds, her license was revoked.
Multiple Trust Account Violations Supreme Ct. Atty. Disciplinary Bd. v. Noyes, 936 N.W.2d 440 (Iowa 2019) Thirty-day suspension for multiples violations related to client trust account. Violations included providing financial assistance to a client by loaning money to the client while waiting for settlement funds to arrive. It was not a defense that the litigation had concluded, as resolution of a client’s lawsuit includes administration of settlement funds. Other violations included comingling trust and business account funds by advancing money to a client from the trust account and the business account and then transferring money between the accounts to reconcile them. Depositing earned fees into the trust account or allowing earned fees to remain in the trust account both constituted violations. Another violation was failure to keep records, resulting in disbursements that resulted in several client accounts with negative balances. Such violations were not excused by blaming an employee who was not properly supervised. Aggravating factors included prior discipline in the form of four prior public reprimands, including two for similar violations, and the fact the attorney is seasoned with over thirty years of experience. Mitigating factors included cooperation, no client harm, proactive changing of the bookkeeping system, and not being motivated by personal gain.
Handling of Payment Made Pursuant to Settlement That Fell Through Supreme Ct. Atty. Disciplinary Bd. v. Hier, 937 N.W.2d 309 (Iowa 2020) Thirty-day suspension for mishandling of conditional and later contested receipt of funds. Parties in a family law dispute reached a verbal settlement agreement that included the father paying the mother’s attorney (Hier) $750 of attorney fees. The father paid the money to Hier before the verbal agreement had been reduced to writing. The settlement fell through, which negated the obligation of the father to pay the fees (although the father was later ordered to pay $1000). When Hier failed to promptly return all of the money (she eventually returned half), the father filed an ethics complaint. The attorney’s conduct was found to violate ethical rules in the following ways: (1) failing to deposit the $750 in her trust account until a written
307 settlement agreement was executed and approved by the court; (2) failing to deposit the money in her trust account because the funds were owned by her client; and (3) failing to keep the money in trust after a known dispute over the funds developed. As to the defense that the father had no valid claim to the money, the court noted, “Hier cannot act as ‘judge and jury to resolve the dispute in [her] own favor.’” Aggravating factors included prior discipline, which included four prior public reprimands and a suspension. Mitigating factors included history of accepting court- appointed cases; pro bono work; work for low-income clients; testimony of the judge involved in the dispute that he considered Hier to be a good and truthful attorney; and lack of harm to the client.
Neglect, Sufficiency of Stipulations, and Probation Sanction Supreme Ct. Atty. Disciplinary Bd. v. Bergmann, 938 N.W.2d 16 (Iowa 2020) Public reprimand for a variety of violations pertaining to neglect of client matters. Violations included missing an important hearing on temporary matters in a dissolution case, failing to attend a mediation in a child custody case, failing to keep a client informed by not returning phone calls, failing to meet appellate deadlines until an order of withdrawal was in place, and requiring additional court action as a result of the neglect. Mitigating factors included the fact the case involved pure neglect (not neglect coupled with other misconduct), inexperience, personal health issues, acceptance of responsibility, cooperation with the disciplinary process, history of public service, and willingness to take proactive measures to correct the problems. Due to lack of detail in the stipulations of the parties, the court could not confirm any claimed aggravating factors. The court criticized the quality of the stipulations entered by the parties, including the lack of detail and stipulations to legal conclusions rather than facts. The case included a reminder that the rule pertaining to stipulations requires “stating supporting facts.” The court also declined to adopt probation as a part of the sanction, as requested by the parties, as the rules do not clearly allow for it and the court believes any system of probation should be adopted through a formal rule amendment and a period of public comment.
Neglect & Failure to Cooperate Supreme Ct. Atty. Disciplinary Bd. v. Goedken, 939 N.W.2d 97 (Iowa 2020) Ninety-day suspension for neglect of multiple estate and trust matters. Violations included requiring nine delinquency notices to be sent, failing to appear for hearings scheduled because of the delinquencies, failing to inform clients of hearings, failing to inform clients of suspension of law license, continuing to practice after license was suspended, and failing to respond to inquiries from the board. Aggravating factors included history of prior discipline, length experience with the practice of law, multiple violations of the same type, unrepentant attitude toward rule violations, failure to cooperate with the board, and continued practice of law in spite of suspension.
308 Mitigating factors included the attorney’s health problems, stresses in his personal life, lack of harm to clients, and lack of dishonest or selfish motive.
Improper Personal Distributions as Administrator of Estate Supreme Ct. Atty. Disciplinary Bd. v. Kozlik, 943 N.W.2d 589 (Iowa 2020) Attorney serving as administrator of his uncle’s estate made unauthorized payments from the estate account to himself, depositing the funds into his personal checking account and his firm operating account. He returned some funds before the disbursements were discovered. The fact the attorney took more than three times the scheduled amount for ordinary fees and the record did not support a suggestion that he would be entitled to extraordinary fees negated the attorney’s “colorable future claim” defense. In light of the misappropriation of funds acting as a fiduciary, the court declined to follow the commission recommendation for a public reprimand and revoked the attorney’s license in Iowa.
Overbilling State Public Defender Supreme Ct. Atty. Disciplinary Bd. v. Meyer, 944 N.W.2d 61 (Iowa 2020) Overbilling the State Public Defender for services not provided and expenses not incurred resulted in the attorney entering an Alford plea to third-degree theft. As a result, a one-year suspension was imposed. Aggravating factors included the amount overbilled (with the court finding “Meyer’s hours were high and unbelievable”) and the fact the attorney entered an Alford plea to criminal charges. Mitigating factors included quality work, lack of harm to clients, lack of disciplinary history, pro bono work, and promptness in making partial restitution.
Sexual Harassment of Employees Supreme Ct. Atty. Disciplinary Bd. v. Watkins, 944 N.W.2d 881 (Iowa 2020) Six-month suspension for creating and fostering a culture of sexual harassment in the attorney’s office while serving as part-time county attorney and private practitioner. Sexual harassment does not require “come-ons,” as “put-downs” suffice as well. Aggravating factors included failure to accept responsibility, proclaimed ignorance that the behavior was inappropriate, the attorney’s position as an elected county attorney, the power imbalance between the attorney and the employees, and the harm caused to an employee. Mitigating factors were limited to the attorney’s cooperation with the disciplinary process and the steps he took to address his unprofessional behavior. The court expressly declined to consider as mitigating factors: (1) lack of prior discipline (because the attorney was new to the practice of law); and (2) lack of experience (because it does not require legal experience to treat employees with basic respect).
309 Forcing Settlement After Being Unprepared for Trial Supreme Ct. Att’y Disc. Bd. v. Beauvais, 948 N.W.2d 505 (Iowa 2020) A three-month suspension is imposed for numerous violations related to being unprepared for trial and forcing a client into settlement. Violations included lack of competence, including designating experts in toxic tort litigation that the attorney had never talked to; failing to abide by client decisions by accepting a settlement offer the client had told the attorney to reject; lack of candor to the court by misrepresenting that his client had accepted the settlement offer; multiple instances of lack of diligence; failing to keep the client informed about the case in general and about the settlement in particular; failing to respond to discovery; making misrepresentations to opposing counsel and his client; and prejudicing the administration of justice by requiring the court to get involved and to postpone trial due to failure to comply with discovery requests. Aggravating factors included multiple rule violations and client harm. Mitigating factors included “acute inexperience,” remorse, admission of wrongdoing, voluntary remedial efforts, steps taken to address depression, ADHD, and anxiety, and work with an underserved part of the community.
Filing Inaccurate Tax Returns & Transferring File Without Consent Supreme Ct. Att’y Disc. Bd. v. Marzen, 949 N.W.2d 229 (Iowa 2020) A thirty-day suspension is imposed for events surrounding preparation of tax returns for a client’s business and transferring an estate matter to another attorney without the client’s consent. Violations included: (1) charging unauthorized finance charges; (2) intentionally mailing inaccurate returns to the IRS and Department of Revenue without following up with amended returns (even though the inaccurate returns were caused by the client’s failure to provide necessary information to complete the returns); (3) mailing the inaccurate returns knowing the returns were to be used for the specific purpose of providing them to the client’s bank in support of the client’s loan application; (4) transferring an estate file to another law firm without the client’s consent; (5) revealing client confidences by transferring the estate file without consent, even if the file only contained filed documents that were public record; (6) making a false statement to a third party by telling the attorney to whom the estate file was transferred that the client had consented to the transfer; (7) engaging in dishonesty and deceit by telling the client the attorney had “hired” the paralegal from the firm to which the attorney had transferred the estate file without telling the client the paralegal worked for a different firm. Aggravating factors included prior discipline and multiple rule violations.
Missing Filings in Appellate Cases Supreme Ct. Att’y Disc. Bd. v. Tindal, 949 N.W.2d 637 (Iowa 2020) “Lawyers shouldn’t use default notices from the supreme court clerk as a tickler system for appellate briefing deadlines.” In spite of recommendations for suspension,
310 a public reprimand was issued for missing several appellate deadlines after being publicly reprimanded for such conduct. In a 6-1 section of the ruling, the court undertakes review of the entire record, including any rule violation alleged by the board, even if the commission found the board failed to prove the violation. The board is not required to cross-appeal in order to obtain such review. The fact default notices from the clerk only warned of discipline if an appeal was dismissed as a result of missed filing deadlines did not preclude imposition of discipline for repeated missed filing deadlines. Mitigating factors included lack of harm to clients (no appeals were dismissed due to missed filing deadlines), representation of underserved parts of the community, cooperation with the board, voluntary practice restriction to no longer handle appeals, and the taking of corrective measures within the office to better track deadlines. Aggravating factors included a prior private admonition and public reprimand for the same conduct and the attorney’s twenty years of experience.
Acting on Criminal Defendant’s Behalf Without Consulting, Etc. Supreme Ct. Att’y Disc. Bd. v. Kieffer-Garrison, 951 N.W.2d 29 (Iowa 2020) A one-year suspension is imposed for violations that included: (1) waiving a criminal client’s preliminary hearing and right to speedy trial without the client’s knowledge or consent; (2) failing to inform the client of the waiver of the preliminary hearing (causing the client to appear for it); (3) falsifying the client’s signature to a written arraignment without consulting with the client and filing the document; and (4) making false statements to the court about how the written arraignment was procured (ultimately ending in the court having to reschedule the arraignment). Aggravating factors included “the grave and serious breach of professional ethics” surrounding her misrepresentation that her client signed the written arraignment, lengthy disciplinary history with misconduct similar to the misconduct in this case, the fact there were multiple violations, the attorney’s substantial experience, and the attorney’s lack of remorse. The court found no mitigating factors.
Flat Fee Pitfalls & Video Testimony Supreme Ct. Att’y Disc. Bd. v. Akpan, 951 N.W.2d 440 (Iowa 2020) In a pre-COVID hearing, the commission abused its discretion in admitting videoconference testimony from the complaining witness over the attorney’s objection. The sanction for this violation was exclusion of that witness’s testimony in the court’s de novo review. A public reprimand was issued for the Iowa-licensed attorney’s violation of Texas’s rules of professional conduct. Although the board failed to prove an unconscionable fee (the standard in Texas, rather than an “unreasonable” fee), it did prove a violation for failing to deposit flat-fee installment payments into the attorney’s trust account when the parties were operating under a flat-fee agreement that did not include contractual milestones permitting withdrawals before completion of the work. The attorney also provided no notice of the fact that the
311 payments were placed directly in the attorney’s business account as earned. Although Texas’s rules and precedent were used to determine if rules violations occurred, Iowa rules governed the sanction. Mitigating factors included the attorney’s provision of low- and no-cost legal services to an underserved community and no prior disciplinary history.
Immigration Representation Issues Supreme Ct. Att’y Disc. Bd. v. Said, 2021 WL 68066 (Iowa 2021) A thirty-day suspension is imposed for actions taken in relation to representing clients in immigration matters. Violations included: (1) failure to adequately disclose and communicate to a client the risks to the client’s immigration status by participating in the client’s effort to seek a driver’s license even though doing so would disclose the client’s past use of a false Social Security number and likely result in criminal charges that could be construed as involving moral turpitude, thus jeopardizing the client’s eligibility for cancellation of removal proceedings; (2) unauthorized disclosure of client information without consent by informing a DOT investigator of the client’s past use of false Social Security numbers to title vehicles; (3) failure to disclose a potential conflict and obtain a waiver of conflict regarding the attorney’s continued representation in the criminal proceeding for use of the false Social Security numbers when the attorney was listed as a potential witness in the criminal case; and (4) failure to adequately disclose the immigration consequences to a client before permitting the client to plead guilty to a crime of fraudulent practices related to use of false Social Security numbers in obtaining vehicle titles knowing the guilty plea would likely be seen as admitting a crime of moral turpitude that would jeopardize the client’s ability to avoid removal proceedings. Mitigating factors included the attorney’s representation of an underserved population facing difficult legal problems and changes to office procedures to help prevent further disciplinary violations. The primary aggravating factor was the attorney’s prior disciplinary record, which included a suspension for similar violations and six private admonitions. Other aggravating factors included the attorney’s substantial experience and his “glib” attitude toward former clients and the disciplinary proceedings.
Conduct Subject to Sanctions at District Court Level Versus Ethics Violations Sup. Ct. Att’y Disc. Bd. v. Rhinehart, 2021 WL 82148 (Iowa 2021) Overruling the commission’s findings and recommendations for suspension, the court concluded the board failed to prove alleged violations and dismissed the complaint. One alleged violation involved the attorney filing a renewed application for immediate restrictions on visitation in a family law matter after the original application had been denied. Because the renewed application included allegations of events that had occurred since the original application had been denied, there was a good faith basis for filing the renewed application such that the conduct did not violate ethics rules.
312 The fact the district court sanctioned the attorney for filing the renewed application did not support the conclusion that ethics rules had been violated. “Not all conduct supporting a litigation sanction violates the rules of professional conduct, and not all conduct violating the rules of professional conduct results in a litigation sanction. Sanctionable conduct and professional misconduct may overlap but are not congruent.” In a business litigation case, the attorney’s incorrect statements in a post-trial motion did not violate ethics rules, as the statements were made over contested matters without the benefit of a transcript. Although the attorney’s criticism of the district court in the post-trial motion involved “less-than-ideal” words, they did not cross the line such as to become an ethics violation. Two concurring justices criticized the lack of civility of the attorney while agreeing with dismissal of the complaint.
CIVIL PROCEDURE
Medical Malpractice – Scope of Expert Designations & Jury Review of Video Eisenhauer ex rel. T.D. v. Henry County Health Center, 935 N.W.2d 1 (Iowa 2019) The jury found in favor of the doctor, nurses, and facility in this medical malpractice claim surrounding a birthing injury. Trial court did not err by allowing the defendant doctor to testify about his opinion that the maneuvers he used were within the standard of care. The doctor had been disclosed as an expert who intended to testify on issues of standard of care. Plus, he was questioned about standard of care during his deposition, and his trial testimony was consistent with and within the scope of his deposition testimony. Also, it was not error to allow admission of the doctor’s handwritten notes derived from a birthing video taken by the plaintiff’s relative, as the notes were a summary of the doctor’s observations and opinions during the plaintiff’s birth and not notes reflecting opinions in anticipation of litigation. Therefore, they did not violate the disclosure requirements of rule 1.508. The birthing video was admitted into evidence and parts were repeatedly played during examination of witnesses, but it was not permitted to be taken into the jury room. When the jury asked to view it during deliberation, it was played in its entirety without the jurors having the ability to pause, stop, or rewind it. Trial court did not abuse its discretion in so limiting the playing of the video.
Retrial – Exonerated Defendant Whitlow v. McConnaha, 935 N.W.2d 565 (Iowa 2019) A motorcycle passenger sued a farmer who turned left in front of the motorcycle as the motorcycle tried to pass the tractor. The farmer filed a third-party contribution claim against the motorcycle driver, causing the passenger to amend her suit to also include a claim against the driver. The jury found the farmer not at fault. Due to an
313 error in the verdict forms, the jury did not go any further to determine liability of the motorcycle driver. The trial court granted a new trial against the motorcyclist only and the supreme court affirmed, finding it appropriate to excuse an exonerated defendant from a retrial when the jury’s no-liability finding is untainted by an error affecting another party.
Class Certification – Commonality Roland v. Annett Holdings, Inc., 940 N.W.2d 752 (Iowa 2020) Trucking company with drivers all over the country had their truck driver employees sign a memorandum of understanding (MOU) requiring injured drivers to travel to Des Moines for a light-duty work program regardless of where they resided. A class action suit was brought seeking to certify a class consisting of drivers who signed the MOU and were compelled to travel to Des Moines for the light-duty work program. In a 5-1 decision, the court found class certification to be inappropriate because the commonality requirement was lacking, as individual issues predominated over common claims. In addition, class certification would circumvent each driver’s obligation to exhaust remedies for alternate medical care under Iowa Code chapter 85. The district court lacked subject matter jurisdiction over claims of class members who had not adjudicated their claims before the workers’ compensation commissioner.
Simultaneous Suits – Claim & Issue Preclusion Lemartec Eng’g & Constr. v. Advance Conveying, 940 N.W.2d 775 (Iowa 2020) Citing with approval Restatement (Second) of Judgments section 26, comment a, when there are simultaneous claims in different forums that arguably deal with overlapping disputes, a party intending to rely on claim preclusion must give notice and an opportunity to develop a framework for resolution of the overlapping issues. By waiting until judgment in one suit before raising the issue of claim preclusion, the waiting party waived its claim preclusion argument. In addition, issue preclusion did not apply because, even though the pleadings in the two suits were similar and both suits involved claimed breaches of the same contract, the nature of the alleged breaches was different.
Cost-Shifting – Frivolous Claims Against CAFOs Merrill v. Valley View Swine, LLC, 941 N.W.2d 10 (Iowa 2020) Iowa Code section 657.11(5) allows confined animal feeding operations (CAFOs) owners to recover costs and expenses against a party who brings an action against the CAFO if the suing party loses the action and the claim is determined to be frivolous. An abuse-of-discretion standard of review is applied to the district court’s award of costs and expenses. The plaintiffs’ second dismissal of their causes of action, which operated as an adverse adjudication against them on the merits pursuant to Iowa
314 Rule of Civil Procedure 1.943, made them losing parties under section 657.11(5). The district court continued to have jurisdiction over the plaintiffs after dismissal in order to address motions for costs and expenses made pursuant to section 657.11(5). The plaintiffs’ claim were frivolous within the meaning of section 657.11(5). One plaintiff’s evidence of harm was marginal and there was no specific basis for concluding odors came from the defendants’ sites. The other plaintiff lacked a legally-required connection to the property, as she did not own the house in question and the record did not show the CAFOs had any impact on her use or operation of some outbuildings she owned. The “costs and expenses” permitted under section 657.11(5) are not limited to taxable costs.
Compelling Arbitration Ommen v. Ringlee, 941 N.W.2d 310 (Iowa 2020) In a 5-1 decision, the court-appointed liquidators of a now-insolvent health insurer pursuing common law tort claims against a third-party contractor are bound by an arbitration provision in a pre-insolvency agreement between the health insurer and the third-party contractor. This is the case even though the liquidators were not parties to the contract containing the arbitration clause because the liquidators’ claims are a derivative of the health insurer’s claims and the health insurer was a party to the contract. It made no difference that the liquidators framed their causes of action in tort, as the claims could not be detached from the contract. Additionally, Iowa Code section 507C.21(k) does not give the liquidators the ability to disavow the contract containing the arbitration clause. Finally, the McCarran-Ferguson Act does not permit reverse preemption of the Federal Arbitration Act.
Application of the Contradictory Affidavit Rule Susie v. Family Health Care of Siouxland, P.L.C., 942 N.W.2d 333 (Iowa 2020) In a 4-1 decision involving a medical negligence action, the plaintiffs’ expert’s report submitted pursuant to Iowa Rule of Civil Procedure 1.508, which the expert contradicted at his deposition, was insufficient to generate a genuine issue of fact due to the “contradictory affidavit rule.” The fact that the expert prepared the report prior to his deposition is inconsequential. Since no witness opined that the immediate administration of antibiotics would have more likely than not avoided the injury to the plaintiff, summary judgment was appropriate. Likewise, since no witness opined what the chances of the plaintiff keeping her arm and toes were, if any, had antibiotics been administered, the plaintiffs’ claim based on “lost-chance” also failed. The dissent asserted the contradictory affidavit rule is a very narrow doctrine that should be applied only in the most compelling circumstances and those circumstances did not exist here.
315 Sanctions for Failing to Attend Settlement Conference Davis v. Iowa Dist. Ct., 943 N.W.2d 58 (Iowa 2020) Plaintiff appealed the imposition of sanctions after he failed to personally attend a pretrial settlement conference in violation of pretrial orders. District courts have inherent authority to manage proceedings on their dockets and in their courtrooms. This authority includes ordering and enforcing certain pretrial conduct, such as attendance at pretrial conferences. The fact Iowa Rule of Civil Procedure 1.602(1) does not specifically mention represented parties when addressing pretrial conferences does not negate the court’s inherent authority. The district court’s order requiring personal attendance of “[a]ll parties with authority to settle” was not too vague to alert the plaintiff that he, as opposed to his attorney, needed to be personally present. The fact the directive to attend was contained in a routine trial-setting order did not make the order any less enforceable. Rule 1.602(5) gave the district court authority to order the payment of attorney fees and costs as a sanction.
Affirmative Defenses – Timing In re Estate of Franken, 944 N.W.2d 853 (Iowa 2020) An affirmative defense can be raised in the first instance in a motion for summary judgment so long as there is no prejudice to the opposing party.
Jurisdiction to Hear Claims for Violating Municipal Civil Rights Ordinances Petro v. Palmer Coll. of Chiropractic, 945 N.W.2d 763 (Iowa 2020) A student at the college claimed age and disability discrimination. He lodged a complaint with the Iowa Civil Rights Commission. The complaint was screened and closed, but the student did not seek a right-to-sue letter. Instead, he filed an identically-worded complaint with the local civil rights commission. Both state and local law prohibit discrimination on disability, but only the local ordinance prohibited discrimination in education based on age. The student got a right-to-sue letter from the local commission and filed suit for violations of the local ordinance, the Iowa Civil Rights Act (ICRA), and breach of contract. In a 5-1 portion of the ruling, the court concluded home rule in Iowa generally stops at the point where a municipality attempts to bring about enforceable legal relations between two private parties. For a municipality to enact law that would be binding between those parties in state court, specific authorization from the legislature is needed. The ICRA does not contain such authorization, so the local ordinance violation claims failed. In 6-0 portions of the ruling, the ICRA claims were barred because they were the second round of claims based on the same conduct and the student had no viable breach of contract claim, as statements of nondiscrimination in the online application and the college’s equal opportunity policy did not give rise to contractual liability.
316 Setting Aside Default – Excusable Neglect No Boundry, LLC v. Hoosman, 2021 WL 218896 (Iowa 2021) The defendant’s house was sold at tax sale and the holder of the tax sale deed filed an action for immediate and exclusive possession. Default judgment was entered against the defendant, who later hired counsel and sought to set aside the default, which the district court denied. In a thorough analysis of what constitutes good cause as a result of “excusable neglect” as a basis for setting aside a default judgment pursuant to Iowa Rule of Civil Procedure 1.977, the supreme court determined the district court erred in denying the motion to set aside the default judgment. The defendant’s motion papers showed he had serious cognitive limitations that hampered his ability to timely defend. His relatively prompt action after default was entered showed an intent to defend. The defendant made a prima facie showing of a statutory defense to the action (i.e., Iowa Code section 447.7) if the default judgment was set aside. Finally, there was no showing the defendant willfully ignored or defied the rules of civil procedure.
COMMERCIAL LAW
(No Cases)
CONSTITUTIONAL LAW
(No Cases)
CONTRACTS
Formation Versus Fulfillment of Conditions Within Existing Contract Niday v. Roehl Transport, Inc., 934 N.W.2d 29 (Iowa Ct. App. 2019) Trucking employment contract between Wisconsin employer and Iowa employee was formed when they struck a bargain during their telephone call, which was confirmed by the employer’s letter to the employee. The place of contracting is where the offer is accepted, or where the last act necessary to a meeting of the minds occurs. The fact the contract required the employee to pass a drug test and complete training did not make the contract a “proposed contract.” Relying in part on Restatement (Second) of Contracts section 224, the court held the drug testing and job training were obligations under the contract and were conditions to enforceability of the contract, but they were not conditions to formation of the contract. Since the parties
317 agreed to all of the terms of the contract during their phone conversation, the contract was formed at that time.
Forum-Selection Clause in Challenge Based on Fraud Karon v. Elliott Aviation, 937 N.W.2d 334 (Iowa 2020) In a 4-2 decision, when a party claims to have been fraudulently induced to enter a contract, the contract’s forum-selection clause is still enforceable unless the fraud relates to the forum-selection clause itself. The court favorably cited Restatement (Second) of Contracts section 80. The court concluded this holding is a “logical corollary to our prior holding that the fraud necessary to set aside an agreement to arbitrate must relate to the arbitration clause itself.”
Reasonableness of Contingency Fee Contract Munger, Reinschmidt & Denne, L.L.P. v. Lienhard Plante, 940 N.W.2d 361 (Iowa 2020) Reasonableness of a contingency fee contract is evaluated from the time of inception of the contract. The analytical approach to determining the reasonableness of fees is the same under the Iowa Rules of Professional Conduct as under the former Iowa Code of Professional Responsibility. Under that approach, noncontingency fee factors under rule 32:1:5(a) are not to be used to reexamine a contingency fee contract at the “conclusion of successful litigation.” Therefore, the evaluation does not include comparing the ratio of hours worked to the results obtained.
CORPORATIONS
How an LLC Enters a Binding Contract to Buy Back Member Units Homeland Energy Solution, L.L.C. v. Retterath, 938 N.W.2d 664 (Iowa 2020) This case involves many issues in an action brought by a limited liability company (LLC) against its member for breach of contract for buyback of the member’s interest units. Based on the nature of the suit and remedies sought, the action was in equity, so the member was not entitled to a jury trial. Trial court did not abuse its discretion in bifurcating trial between original issues and those raised by amendment of the member’s pleadings later in the suit. Neither the LLC’s operating agreement nor Iowa common law nor Iowa Code chapter 489 required membership approval of the member unit purchase agreement between the LLC and the member. Board approval was sufficient. Trial court did not abuse its discretion in refusing to sanction the LLC or in refusing to grant a continuance due to the member’s late discovery request. Provision in agreement setting deadline for the member to sign and return the agreement did not impose the deadline on the LLC. Specific performance was an appropriate remedy for the member’s breach of the agreement. The member’s arguments that the LLC was not entitled to specific performance because the LLC did
318 not act in good faith or otherwise comply with its obligations under the agreement were without merit. Trial court did not err in rejecting the member’s defenses of equitable estoppel, unilateral and mutual mistake, unclean hands, and procedural and substantive unconscionability. Trial court erred by awarding attorney fees to the LLC, as the agreement did not clearly and unambiguously show an intent to shift attorney fees in non-third-party cases resulting from the member’s breach of the agreement. However, the request for attorney fees was in good faith, so the member was not entitled to sanctions.
CRIMINAL LAW
Jurisdiction Over Crimes on Tribal Land State v. Stanton, 933 N.W.2d 244 (Iowa 2019) Iowa state courts have jurisdiction over criminal matters arising on the Meskwaki Settlement when the defendant is non-Indian and the victim is also non-Indian (or when the crimes are victimless).
Duty to Retreat – Stand Your Ground State v. Lorenzo Baltazar, 935 N.W.2d 862 (Iowa 2019) The 2017 amendment known as “stand your ground” changed – but did not eliminate – the implied duty to follow an alternative course of action, as the “stand your ground” provisions of section 704.1(3) only apply to a person “who is not engaged in illegal activity.” Assuming without deciding the implied duty to retreat involves only illegal activities germane to the use of force, the defendant’s possession of the handgun in this case was directly related to the shooting death of the victim. Therefore, his illegal possession of the handgun was germane to the use of deadly force and he was disqualified from asserting “stand your ground” justification.
Weapons – What Constitutes “Grounds of a School” State v. Mathias, 936 N.W.2d 222 (Iowa 2019) “[G]rounds of a school” in Iowa Code section 724.4B can include school district-owned athletic facilities that are not part of or built on the land contiguous to the classroom building. A special concurrence (joined by two from the four-justice majority opinion) asserted the athletic facilities were not merely on the grounds of a school but constituted part of the physical plant of the school itself. One dissenter applied the rule of lenity, coupled with law enforcement uncertainty as to whether firearms were prohibited at the athletic facilities, to conclude “grounds of a school” did not include the parking lot of a football stadium separated by over a mile from the school itself.
319 False Reports – Defenses to Crime Reported State v. Bynum, 937 N.W.2d 319 (Iowa 2020) In a 4-2 decision, with regard to a charge of false reports in violation of Iowa Code section 718.6(1), a potential defense to the underlying criminal act does not absolve the reporting party from criminal responsibility. There is sufficient evidence of guilt if the defendant falsely reports conduct that would establish the prima facie elements of a crime. In this case, the underlying crime reported was carrying weapons, which has numerous statutory exceptions. The exceptions are not elements of the crime, so the State is not required to prove the absence of an exception. If the defendant’s theory of defense on the underlying falsely-reported crime is the existence of a valid permit, he must produce substantial evidence of the valid-permit exception before he is entitled to a jury instruction related to that issue. Since he did not do so in this case, the trial court did not err in refusing to give the requested instruction.
Self-Defense & Stand-Your-Ground Non-Retroactivity State v. Fordyce, 940 N.W.2d 419 (Iowa 2020) In a bench trial, substantial evidence supported district court’s finding the defendant continued the incident that resulted in the defendant shooting and killing the victim. Due to the finding the defendant continued the incident, the court did not need to address whether the State proved the defendant had an alternative course of action available. Nevertheless, the court addressed the defendant’s “stand-your-ground” claim and determined the 2017 amendment to Iowa Code section 704.1(3) did not apply to conduct occurring before July 1, 2017, the effective date of the statute. Since this incident occurred in 2015, the defendant was not entitled to rely on the stand- your-ground defense.
No Reduction of Minimum Sentence with Firearm Enhancement Lozano Campuzano v. Iowa District Court, 940 N.W.2d 431 (Iowa 2020) The defendant pled guilty to possession of methamphetamine with intent to deliver while in possession of a firearm in violation of Iowa Code section 124.401(1)(b)(7) and 124.401(1)(e). A few months after being sentenced, the legislature amended Iowa Code section 124.413 and created section 901.12, which applied retroactively to reduce the minimum term of incarceration for certain offenses. Finding the statute ambiguous, in a 4-2 decision, the court concluded sections 124.413 and 901.12 serve to reduce the minimum period of confinement for specific criminal drug offenses, but a person serving a sentence pursuant to a firearm-enhanced conviction is not eligible for the one-half reduction.
320 Drug Usage as Child Endangerment State v. Folkers, 941 N.W.2d 337 (Iowa 2020) Sufficient evidence supported a conviction for child endangerment. A “substantial risk” in the context of child endangerment is “[t]he very real possibility of danger to a child’s physical health or safety.” “The risk does not have to be likely, probable, or statistically significant. It just needs to be real or identifiable as opposed to speculative or conjectural.” That standard was met here where the evidence showed (1) the parents knowingly possessed hash oil, marijuana, and paraphernalia in the home and smoked the drugs in the home, (2) the parents used an oversized butane torch to smoke illegal drugs and cigarettes in the home, (3) the torch was used in the middle of the night or early morning hours, (4) a fire started when the oversized torch was used to light hash oil, (5) the fire originated in the front room only feet from the sleeping two-year-old’s bedroom, (6) the child needed medical attention after being discovered covered in soot and smelling “extremely smoky,” and (7) the child was too young to self-protect. Even though the defendant mother did not cause the fire, she still committed child endangerment by (1) knowingly possessing illegal hash oil, marijuana, and paraphernalia, (2) smoking drugs in the home with the father, (3) being aware the father smoked drugs in the house, sometimes using the large butane torch, and (4) failing to remove the child from this dangerous situation.
Definition of Theft-Detection Device State v. Ross, 941 N.W.2d 341 (Iowa 2020) Finding the statute ambiguous, the court concludes that “theft detection device” under Iowa Code section 714.7B is a device that detects theft instead of simply trying to prevent theft. Therefore, a padlock–steel cable combination wrapped around a lawn mower outside a retail store to prevent theft was not a “theft detection device.”
Theft by Check – Unauthorized Signer State v. Schiebout, 944 N.W.2d 666 (Iowa 2020) The defendant wrote checks without authorization from a bank account that was not hers. The State charged her with theft in violation of Iowa Code section 714.1(6), which forbids knowingly presenting a check that will not be paid when presented. In a 5-2 ruling, evidence that the defendant presented checks without authorization is, without more, insufficient to establish this particular crime. The State did not present sufficient evidence that the defendant knew the checks would not be paid when presented. The dissenters argued the jury instructions, which were not objected to, established the law of the case and the law of the case negated the majority’s interpretation.
321 “Carrying” a Weapon While Intoxicated State v. Shorter, 945 N.W.2d 1 (Iowa 2020) The term “carries” in section 724.4C(1)(a) and (b), prohibiting carrying a weapon while intoxicated, is narrower than, and does not extend to, mere possession. Thus, jury instructions that allowed the jury to convict the defendant if he either carried or possessed a dangerous weapon misstated the law. Once instructional error is established, prejudice is presumed, and the State must prove a lack of prejudice. Here, the fact the instructions erroneously allowed the jury to convict the defendant based on constructive possession and the State exploited the erroneous instructions during closing argument established prejudice.
Felony Eluding Does Not Merge With Possession of Marijuana State v. Johnson, 950 N.W.2d 21 (Iowa 2020) A conviction for felony eluding based on marijuana possession does not merge with a conviction for possession of marijuana. Even though the two crimes meet the “legal- elements test” for double jeopardy analysis, the two crimes do not merge because the legislature intended multiple punishments for the two offenses.
Reckless Driving Versus Intoxicated Operation State v. Johnson, 950 N.W.2d 232 (Iowa 2020) Reckless driving causing homicide in violation of Iowa Code section 707.6A(2)(a) is not a lesser-included offense of homicide by intoxicated operation of a vehicle in violation of Iowa Code section 707.6A(1). The two crimes do not meet the “impossibility test,” as it is possible to commit one without committing the other. Since the legislature defines “operate” differently than “drive,” one can “operate” a vehicle while intoxicated (violating section 707.6A(1)) without recklessly “driving” it (violating section 707.6A(2)(a)). The fact the defendant was unquestionably driving (and thus operating) his vehicle in this case does not change the analysis because, in deciding whether a crime is a lesser-included offense, courts look to the elements of the offense, not to the particular facts of the case. Also, since homicide by intoxicated operation of a vehicle “arises out of a violation of an offense provided for in chapter 321J,” the $10 D.A.R.E. surcharge set forth in section 911.2(1) was properly imposed.
Speeding as Lesser-Included Offense of Eluding While Speeding State v. Roby, 951 N.W.2d 459 (Iowa 2020) Defendant was given a citation for speeding as part of the prosecution of him for eluding while speeding. Speeding is a lesser-included offense of eluding while speeding. Ordinarily a conviction for speeding would merge into an eluding while speeding charge to comply with double jeopardy requirements. However, a defendant cannot use double jeopardy as a sword to avoid prosecution of the greater charge.
322 So, Defendant’s entry of a guilty plea to the speeding citation did not preclude the State from prosecuting the eluding while speeding charge.
Forcing Another to Commit Sexual Abuse State v. El-Amin, 952 N.W.2d 134 (Iowa 2020) In addition to sexually assaulting a woman himself, the defendant also forced another man to sexually assault her. The defendant pleaded guilty to two counts of sexual abuse – one in which the woman was the victim and the other in which the other man was the victim. He then challenged the factual basis for the second count, arguing he did not perform a sex act on the other man. The court upheld the conviction, finding the other man was a victim, as the defendant is criminally liable for the conduct of an innocent person the defendant caused to commit the offense.
CRIMINAL PROCEDURE
Appeals of Guilty Pleas & Ineffective Assistance Claims on Direct Appeal State v. Macke, 933 N.W.2d 226 (Iowa 2019) In a 6-1 portion of the ruling, amendments to Iowa Code sections 814.6 and 814.7 limiting appeals from guilty pleas and precluding raising ineffective-assistance-of- counsel claims on direct appeal are not retroactive, so they do not apply to judgments and sentences entered before July 1, 2019. Statutes restricting a right to appeal apply prospectively only unless the statute expressly makes it retroactive, which this one does not. On the merits, in a 5-2 ruling, trial counsel was ineffective for failing to object to the State’s breach of the plea agreement by failing to recommend a deferred judgment. Although the State never expressly agreed to the terms of the agreement, the State’s acceptance of the agreement was inferred from the State’s silence when the plea agreement was recited on the record during the plea hearing. The dissent argued the appeal can proceed, but the ineffective-assistance claim was barred by the statute. This is because the event of legal consequence is the appellate court’s exercise of judicial power to decide a claim of ineffective assistance of counsel on direct appeal. Since that event was only happening after the effective date of the statute, the statute was only being applied prospectively.
Witness Claim of Privilege Against Self-Incrimination State v. Heard, 934 N.W.2d 433 (Iowa 2019) A witness is entitled to assert a blanket Fifth Amendment privilege to refuse to answer questions. It is not required to allow the witness to assert such privilege in the presence of the jury, because the jury is not entitled to draw any inferences from the decision of a witness to exercise the constitutional privilege whether those inferences are favorable to the prosecution or the defense. The witness was entitled to assert
323 the privilege in the defendant’s second trial, even though the witness testified in the first trial, as waiver of the privilege in the first trial did not preclude asserting the privilege in the second. Waiver of the privilege is limited to the particular proceeding. Finally, the defendant’s challenge to his life-without-parole sentence on the basis there was no finding he was an adult when the crime was committed is not a challenge to an illegal sentence. Instead, it is a challenge to the procedural jury instruction requirements, and, therefore, must be raised as a challenge during trial to preserve error.
Last Minute Motions & Ineffective Assistance Claims on Post-Trial Motions State v. Trane, 934 N.W.2d 447 (Iowa 2019) When a defendant raises an important motion at the eleventh hour, having demonstrated the motion could not have been raised earlier, and granting the motion could push the trial past a speedy trial deadline that the defendant refuses to waive, the preferred procedure is to make it clear to the defendant that granting the motion will push the trial past the speedy trial deadline and, if the defendant insists on pursuing the motion, find good cause under Iowa Rule of Criminal Procedure 2.33(2)(b) for extending the speedy trial deadline. This balances the two rights, rather than forcing the defendant to choose one. Trial court abused its discretion by denying the defendant’s rule 5.412 motion rather than holding an in camera hearing on the defendant’s eleventh hour motion (which could not have been filed earlier) and, if necessary, delaying briefly the trial. Also, trial courts are not to hear ineffective-assistance-of-counsel claims as part of post-trial motions. By statute, such claims are only to be heard on direct appeal or by postconviction-relief proceedings, not by post-trial motion.
Immigration Status in Sentencing & Mootness Due to Parole State v. Avalos Valdez, 934 N.W.2d 585 (Iowa 2019) When a defendant appeals a sentence due to failure to grant probation, the appeal may become moot when the defendant is released on parole. However, in this case, the court applied the public-importance exception to the mootness doctrine to decide the case on the merits. On the merits, a defendant’s immigration status per se is not an appropriate sentencing consideration, but immigration status may be taken into account to the extent it affects an otherwise relevant sentencing factor. In this case, the district court determined probation would not be appropriate because the defendant’s immigration status (i.e., an unauthorized alien with an ICE hold pending deportation) meant he would not be available to undergo probation. Since this determination was a consideration of immigration status as it related to a relevant sentencing factor, there were no federal or state due process or equal protection violations.
324 Jail Room and Board Fees – Civil Judgment Versus Restitution State v. Gross, 935 N.W.2d 695 (Iowa 2019) A sheriff seeking reimbursement for jail room and board fees under Section 356.7 has the option of getting a civil judgment for the amount claimed or having the amount assessed as restitution. If the sheriff pursues the civil judgment option, the judgment is not subject to the defendant’s reasonable ability to pay like it would be if the restitution option is used. The Court left for another case issues of whether assessment of jail room and board fees as a civil judgment without a separate lawsuit denies due process, whether a lack of reasonable ability to pay determination in the civil judgment context denies due process, how the judgment is to be recorded, who gets the proceeds of the judgment when collected, etc.
Presumed-Prejudice Standard – Jury Instruction Error State v. Lorenzo Baltazar, 935 N.W.2d 862 (Iowa 2019) Errors in jury instructions are presumed prejudicial unless the record affirmatively establishes there was no prejudice. However, this “presumed-prejudice” standard applies to preserved errors in jury instructions. It does not apply to ineffective- assistance-of-counsel claims based on failure to preserve jury instruction error. Under the ineffective-assistance-of-counsel framework, the defendant still has to demonstrate breach of duty and prejudice with regard to failure to preserve jury instruction error.
Limits on Appeal of Guilty Pleas – No Retroactivity State v. Draine, 936 N.W.2d 205 (Iowa 2019) Consistent with its ruling in State v. Macke, the 2019 amendments to Iowa Code section 814.6(1) denying a defendant the right of appeal from a guilty plea, except for a guilty plea to a class “A” felony or where a defendant establishes good cause, are not retroactive. So, the statutes controlling appeals are those that were in effect at the time the judgment or order appealed from was rendered. (Only five justices participated in the ruling. One dissenter addressed the merits of the defendant’s competency challenge and urged reversal. Three of the other four justices found no error in the way the district court handled the competency issue. The remaining justice limited the decision to the jurisdictional issue only.)
Discretion on Mandatory Minimum for Firearm Forcible Felony State v. Moore, 936 N.W.2d 436 (Iowa 2019) Iowa Code section 902.7 imposes a five-year minimum sentence for a person participating in a forcible felony when a dangerous weapon is used, displayed, etc. However, Iowa Code section 901.10(1) gives the sentencing judge discretion to reduce section 902.7’s five-year minimum when it is the defendant’s first forcible
325 felony and the record shows mitigating circumstances. Here, the court’s agreement with defense counsel’s statement that “we don’t have much wiggle room” coupled with the failure to mention, verbally or in the written sentencing order, anything about the option of reducing the minimum sentence caused the supreme court to conclude the sentencing judge was unaware of that option. Since no discretion was exercised when the five-year minimum was imposed, resentencing was necessary.
Claim of Illegal Sentence – Juvenile Offender Goodwin v. Iowa Dist. Ct., 936 N.W.2d 634 (Iowa 2019) Juvenile offender convicted of second degree murder was sentenced to fifty years in prison with a twenty-year minimum. Offender later filed a “motion to correct an illegal sentence” challenging whether the sentencing judge properly weighed the Miller/Lyle/Roby factors and expert testimony during his sentencing hearing. In a 4-2 decision, the court found this to be a challenge to a defective sentencing procedure, not a challenge to an illegal sentence, making it an improper collateral attack on the sentence. Since the motion was not a proper motion to correct an illegal sentence, offender was not entitled to a statutory right to counsel under Jefferson v. Iowa Dist. Ct., 926 N.W.2d 519 (Iowa 2019). Two justices from the majority specially concurred, arguing Lyle and Roby were wrongly decided. Two dissenters argued the motion was prematurely denied and should be remanded with appointment of counsel.
Referencing Defenses in Marshalling Instruction State v. Kuhse, 937 N.W.2d 622 (Iowa 2020) The court reiterates that justification is an affirmative defense rather than an element of the crime of assault. Once substantial evidence is introduced by the defense supporting a justification defense, the burden shifts to the State to prove lack of justification beyond a reasonable doubt. Responding to a claim of ineffective- assistance-of-counsel based on defense counsel’s failure to object to a marshalling instruction that did not reference the justification defense, the court finds the defendant failed to satisfy the prejudice prong because self-defense was the focal point of the trial, eight of the twenty-seven jury instructions addressed justification, and there was strong evidence the defendant did not act with justification.
No Retroactivity to “Fair Cross-Section” Claims Thongvanh v. State, 938 N.W.2d 2 (Iowa 2020) (This case’s holding was also applied to resolve another case decided on the same date: Jones v. State, 938 N.W.2d 1 (Iowa 2020)). Applicant convicted of first degree murder in 1984 sought postconviction relief (PCR) claiming violation of his constitutional right to an impartial jury drawn from a fair cross section of the community under the standards set forth in State v. Plain, 898 N.W.2d 801 (Iowa 2017). Because the applicant could not have successfully argued this claim based on
326 the state of the law when the three-year statute of limitations for PCR claims expired, his claim was not time-barred by Iowa Code section 822.3. Plain’s holding on the second prong of the Duren test constitutes a new rule under the Teague framework. However, because it is not a watershed rule of criminal procedure, it does not apply retroactively to cases on collateral review. The Teague framework does not permit this applicant to make a Plain claim on PCR. Also, neither the Teague framework nor the Iowa Constitution’s due process or equal protection guarantees require Plain to apply retroactively to convictions that were already final at the time Plain was decided.
“Hesitate” in Jury Instructions, Prosecutor as Witness, & Excusing Jurors State v. Leedom, 938 N.W.2d 177 (Iowa 2020) Prosecutor’s comparison and contrast of the word “hesitate” in the reasonable doubt jury instruction (“evidence of such a convincing character that a reasonable person would not hesitate to act”) and the same word in the deliberation instruction (“During your deliberations, do not hesitate to re-examine your view”) could be viewed as an attempt to water down the meaning of the word in the reasonable doubt instruction and was an improper argument. However, the district court’s curative instruction to the jury supported the district court’s finding there was no prosecutorial misconduct. Defendant’s right to compulsory process was not violated by the district court’s refusal to allow the defendant to call the prosecutor as a witness during a hearing on the defendant’s motion for new trial to testify about alleged prosecutorial misconduct. “Like the trial court, we examine the record of [the prosecutor’s] conduct itself to determine if lines were crossed, regardless of what [the prosecutor] was thinking at the time.” What the prosecutor was thinking during trial is off-limits. Also, while “strongly encourag[ing] trial judges to question prospective jurors on their claimed hardships before excusing them,” and noting the trial judge did not do so in this case, a new trial was not required because the trial judge determined each of the excused jurors had a work-related hardship, which is a valid basis for dismissing a juror under Iowa Code section 607A.6.
State’s Subpoena of Defense Expert for Grand Jury Testimony In re 2018 Grand Jury of Dallas County, 939 N.W.2d 50 (Iowa 2020) In a 5-1 portion of the ruling (the remaining issues were decided 6-0), the State cannot subpoena an expert retained by the defense to testify before the grand jury regarding her opinions on the criminal matter being investigated. Work-product protection and attorney-client privilege apply to grand jury proceedings. While the prosecutor’s ex parte call to the expert was improper, it was not a basis to disqualify the prosecutor. Defendant was entitled to quash the subpoena, but not the entire grand jury process. Filing a motion seeking a continuance to gather information to support a potential fair-cross-section Plain claim related to the grand jury is sufficient compliance with rule 2.3(2)(a)’s requirement that challenges be raised prior to the
327 grand jury being sworn. The rule does not require such challenges to be decided before the grand jury is sworn.
Date of Offense Not an Element State v. Juste, 939 N.W.2d 664 (Iowa Ct. App. 2019) In child sexual abuse trial, the exact timing of the alleged criminal conduct is not a material element of the crime. Here, the victim testified to a window of approximately five months within which the abuse occurred. Therefore, the district court did not err in giving a jury instruction informing the jury that the date alleged by the State was just a date to place the defendant on notice of the date the crime is alleged to have occurred, but it was not legally significant if the jury found the crime occurred.
PCR Statute of Limitations After Resentencing Sahinovic v. State, 940 N.W.2d 357 (Iowa 2020) An applicant who seeks to challenge an underlying conviction does not get a new three-year postconviction relief (PCR) deadline when the applicant is resentenced. The applicant was convicted in 2011. The applicant successfully sought and obtained resentencing in 2015 based on the fact he was a juvenile when the offense was committed. He later brought this PCR action seeking to challenge his guilty plea. The action was untimely because the deadline to bring such a claim expired three years after his conviction in 2011. The result would be different if the applicant had obtained resentencing on direct appeal, because, in that situation, the conviction and the sentence would not become final until resentencing was completed.
Resentencing of Juvenile Offender State v. Majors, 940 N.W.2d 372 (Iowa 2020) The defendant was fifteen days away from his eighteenth birthday when he committed a home invasion that resulted in him pleading guilty to attempted murder. This case involves his second resentencing due to evolution of juvenile sentencing standards. In a 4-2 decision, including a special concurrence by two justices in the majority, the court found the district court did not abuse its discretion by imposing the mandatory minimum sentence after considering the youth sentencing factors under Roby. The sentence was supported by testimony from the State’s expert. The defendant personally chose not to retain a defense expert. Counsel was not constitutionally-ineffective for relying on cross-examination of the State’s expert without retaining a defense expert that the defendant chose to forgo.
Delay in Bench Trial Ruling State v. Fordyce, 940 N.W.2d 419 (Iowa 2020) Following a bench trial, the district court took eleven months to issue a ruling.
328 Although expressing concern about the delay, the court found the defendant did not show how the delay translated into a violation of his due process rights. The detail in the ruling belied any claim the delay diminished the district court’s ability to recall the evidence. The delay also did not violate the defendant’s speedy trial rights.
Sufficiency of Evidence of Possession State v. McMullen, 940 N.W.2d 456 (Iowa Ct. App. 2019) There was sufficient evidence to support the guilty verdict against a vehicle passenger for possession of drugs found in the vehicle. The passenger was the owner of the vehicle. All contraband was within his reach. Although he claimed he did not know the contraband was in the vehicle and blamed it on his drug-dealing friend, the open and exposed cup containing marijuana rebutted this claim. Also, his claim he had loaned the vehicle to a friend earlier in the day conflicted with the driver’s version of events. Finally, the passenger’s furtive movements, his possession of a large amount of cash on his person, and the presence of “marijuana shake” on the belly portion of his shirt all supported the guilty verdict.
Actual Innocence Claims – Lesser Included Offenses Dewberry v. State, 941 N.W.2d 1 (Iowa 2019) A postconviction relief applicant can establish a claim of actual innocence only upon clear and convincing evidence the applicant is factually innocent of the offense of conviction, including any lesser included offenses thereof.
Stand-Your-Ground Procedures & Fair Cross-Section Issues State v. Wilson, 941 N.W.2d 579 (Iowa 2020) A defendant asserting a “stand your ground” defense is not entitled to a pretrial hearing on the issue to seek dismissal. Unlike legislation in some other states, Iowa Code section 704.13 provides immunity from “liability,” not immunity from “prosecution.” Additionally, holding a pretrial hearing would be impractical because it would essentially require the same evidence as would be introduced at trial. Also, the defendant’s Plain/Duren challenge to the racial makeup of the jury was properly denied, as the defendant did not make a record as to the racial makeup of jurors in the entire jury pool called to the courthouse that day; he only made a record about the racial makeup of the jurors in the subset of the pool assigned to his trial. The Plain/Duren right applies to the entire jury pool, not a subset of the pool.
Stand-Your-Ground Notification Requirement State v. Gibbs, 941 N.W.2d 888 (Iowa 2020) As part of the “stand-your-ground” enactment in 2017, Iowa Code section 704.2B(1) was adopted, requiring a person using deadly force to notify law enforcement within
329 a reasonable period of time. In a 5-1 portion of the decision, the court declined to address whether section 704.2B(1) violated the Fifth Amendment “merely by being on the books.” Also in a 5-1 ruling, the defendant’s Fifth Amendment rights were violated when, over his objection, the trial court gave a jury instruction paraphrasing the notification requirement of section 704.2B(1). However, the error in giving the instruction was harmless beyond a reasonable doubt because “evidence of guilt was so strong and that of justification so weak.”
First-Time, In-Court Identification State v. Doolin, 942 N.W.2d 500 (Iowa 2020) This case addresses an eyewitness’s in-court identification of the defendant as the perpetrator of the crime. In a 4-1 decision, the court interprets the Iowa due process clause using the federal standard and rejects due process challenges to first-time, in- court identifications. Where an in-court identification is not preceded by an impermissibly suggestive pretrial identification procedure arranged by law enforcement, and where nothing beyond the inherent suggestiveness of the ordinary courtroom setting makes the in-court identification itself constitutionally suspect, due process does not require the trial court to assess the identification for reliability under the five-factor Biggers analysis.
Eyewitness Identification Procedures State v. Booth-Harris, 942 N.W.2d 562 (Iowa 2020) In a 5-1 decision, the court declines to defer to evolving social science as grounds for establishing fixed principles of constitutional law regarding admissibility of eyewitness identification. So, under both constitutions, Iowa continues to follow a two-step analysis in assessing challenges to out-of-court identifications: (1) whether the procedure used was impermissibly suggestive; and (2) whether under the totality of the circumstances the suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. Regarding the second step, the critical question is reliability, which involves a five-factor test: (1) the witness’s opportunity to view the perpetrator at the time of the crime; (2) the witness’s degree of attention; (3) accuracy of the witness’s prior description of the perpetrator; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) length of time between the crime and the confrontation. Since most “best practices” were followed here, the showing of a single photo was not impermissibly suggestive because the defendant was not a suspect when the single photo was shown and there was not a substantial likelihood of irreparable misidentification. Counsel did not render ineffective assistance of counsel by failing to object to ISBA stock jury instruction 200.45 on eyewitness identification or request a different instruction, as the instruction does not misstate the law.
330 Challenge to Plea Bargain Containing Illegal Term State v. Gordon, 943 N.W.2d 1 (Iowa 2020) Pursuant to a plea agreement upon which the defendant insisted, the defendant pled guilty to a forcible felony on the condition that he be given a 48-hour furlough prior to beginning his sentence. The court went along with the agreement in spite of the fact release from custody after a plea to a forcible felony is not permitted. After being released, the defendant absconded and filed an appeal, claiming counsel was ineffective and the prosecutor engaged in misconduct by letting him enter a plea agreement that contained an unlawful term. Because he was returned to custody while the appeal was pending, the appeal was not required to be dismissed. On the merits, the court held that, on the unique facts of this case, the defendant could not show prejudice in the ineffective-assistance-of-counsel analysis because it was his action in absconding, not counsel’s procuring of an illegal condition that benefited the defendant, that resulted in the defendant’s predicament.
Breach of Plea Agreement – Specific Performance State v. Beres, 943 N.W.2d 575 (Iowa 2020) Plea agreements are governed by contract principles. The defendant agreed to plead guilty to arson in the second degree and to be interviewed about other suspicious fires. In return, the State agreed not to charge the defendant with starting the other fires. After the defendant pled, but before sentencing, the State determined it had enough evidence to prosecute the defendant for the other fires without the need to interview the defendant. Prior to sentencing, the prosecutor informed defense counsel that an interview was not needed and the State intended to charge the defendant with starting the other fires. The State also expressed willingness to agree with the defendant withdrawing his original plea. The sentencing hearing went forward with no record made of the problem with the other charges. When the State filed charges on the other fires, the defendant moved to dismiss, claiming breach of the plea agreement. On interlocutory appeal, the State was determined to have breached the agreement and the defendant was entitled to specific performance of dismissal. Since the State declined to interview the defendant, even after the defendant reminded them of his willingness to be interviewed, the State could not use the lack of interview as a basis for backing out of the agreement. Any new evidence the State had received did not frustrate the purpose of the agreement such that the State was relieved of its obligation not to charge the defendant with starting the other fires. The defendant did not ratify the State’s proposed modification by refusing the State’s offer to rescind and going forward with sentencing on the original charge.
331 Restitution – Proof of Causation State v. DeLong, 943 N.W.2d 600 (Iowa 2020) Restitution is not discretionary. However, the State must show a causal connection between the crime and the amount claimed. Ordinarily, an expense verification form from a medical provider that reasonably identifies the service provided, identifies the cost borne by the victim, and verifies that the costs were incurred as a direct result of crime is sufficient to constitute substantial evidence of causation. A mere statement by the Crime Victim Compensation Program (CVCP) coordinator that an expense is directly related to the crime is not substantial evidence supporting the restitution claim, especially when that statement is backed up only by miscellaneous incomplete documents.
Expungement After Dismissal Doe v. State, 943 N.W.2d 608 (Iowa 2020) The requirement in Iowa Code section 901C.2(1)(a)(2) that a defendant satisfy “all court costs, fees, and other financial obligations ordered by the court or assessed by the clerk” as a condition to expungement after dismissal refers to the court costs, fees, and other financial obligations in that particular case only. It does not include a requirement to satisfy all costs, fees, and other financial obligations in all cases.
“Good Cause” to Appeal Following Guilty Plea State v. Damme, 944 N.W.2d 98 (Iowa 2020) This is the first case interpreting newly-amended Iowa Code section 814.6(1)(a)(3), which prohibits an appeal following a guilty plea unless the charge is a class “A” felony or the defendant establishes good cause. The defendant has the burden to show “good cause.” The court holds that good cause exists to appeal from a conviction following a guilty plea when the defendant challenges the sentence rather than the guilty plea and the sentence is neither mandatory nor agreed to as part of the plea bargain. Newly-amended section 814.7 prohibited the defendant from pursuing her ineffective assistance of counsel claim on direct appeal. On the merits, in a 5-2 portion of the decision, the majority “strongly disapprove[d]” of the sentencing court’s “poor choice of words” in stating “your family stock is not good.” However, the majority found this was not consideration of an improper sentencing factor due to explanatory comments that followed showing the comment was made in the context of considering the proper factor of the defendant’s family circumstances.
Interim Orders of Restitution State v. Davis, 944 N.W.2d 641 (Iowa 2020) In a 6-1 decision, clarifying Albright, interim orders of restitution that do not make a reasonable-ability-to-pay determination should state the defendant is not obligated to
332 pay the sum until entry of the final order and the reasonable-ability-to-pay determination is made. To the extent such interim orders purport to allow enforcement, our appellate courts must vacate the order or remand for clarification that the interim order is not enforceable. Overruling two 1999 cases, the defendant is not required to exhaust remedies under Iowa Code section 910.7 as a prerequisite for appellate review of a restitution order in a direct appeal.
“Sexually Motivated” Finding following Alford Plea State v. Chapman, 944 N.W.2d 864 (Iowa 2020) When a defendant enters an Alford plea to a charge that does not have sexual motivation as an element, the district court cannot consider facts only identified in the minutes of evidence in determining whether the defendant’s criminal conduct was sexually motivated as set forth in Iowa Code section 692A.126 – a determination that would be required before sex offender registration could be ordered. Without deciding whether the victim’s mother’s victim impact statement could be considered as evidence to make the “sexually motivated” finding, the statement in this case did not present sufficient evidence of sexual motivation. The sentencing order requiring sex offender registration was vacated. However, the remedy was to remand to permit the State, if it is able, to introduce competent evidence to support its request that the defendant be required to register as a sex offender. In a 5-1 portion of the otherwise unanimous ruling, remand did not violate double jeopardy because sex offender registration requirements are not “punishment” with respect to an adult offender.
Newly Discovered Evidence Standard for New Trial State v. Uranga, 950 N.W.2d 239 (Iowa 2020) A registered sex offender claimed a letter from the sheriff giving him a “grace period” to appear at the sheriff’s office to register was newly discovered evidence entitling him to a new trial. A new trial on the basis of newly discovered evidence should be granted only when evidence (1) was discovered after the verdict, (2) could not have been discovered earlier in the exercise of due diligence, (3) is material to the issues in the case and not merely cumulative, and (4) probably would have changed the result of the trial. Here, the defendant failed to meet the second requirement, as the defendant was aware of the letter prior to the jury returning its verdict, as he testified about it during the trial. In addition, the letter was made available to the defense prior to trial. Failing to seek out the letter during discovery constituted failure to exercise due diligence and precluded relief. Evidence made available to the defense prior to trial is not “newly discovered evidence” upon which a new trial can be granted.
Jurisdiction to Hear Appeal – Deferred Judgment Revoked After Guilty Plea State v. Thompson, 951 N.W.2d 1 (Iowa 2020) Defendant was granted a deferred judgment following a guilty plea. The trial court
333 later revoked the deferred judgment, entered judgment of guilt, and sentenced Defendant. On appeal, the State challenged the supreme court’s jurisdiction to hear the appeal based on the amendments to Iowa Code section 814.6. The court found Defendant was not challenging her guilty plea. Rather, she was challenging the order revoking her deferred judgment and entering a judgment of conviction and sentence. As in Damme, the alleged errors arose after the acceptance of the guilty plea, so Defendant had “good cause” for appealing under section 814.6. On the merits, the State conceded error because the trial court held a hearing in Defendant’s absence and failed to make factual findings supporting the decision to revoke the deferred judgment and impose sentence.
Cross-Referencing Defenses in Marshaling Instruction State v. Davis, 951 N.W.2d 8 (Iowa 2020) In a 4-3 decision overruling a 2-1 court of appeals decision, defense counsel was ineffective for failing to object to the district court giving a first degree murder marshaling instruction that did not include a cross-reference to the defendant’s defenses (including insanity) when all lesser-included-offense marshaling instructions included such a cross-reference.
Jail Fees on Overturned Conviction State v. Shackford, 952 N.W.2d 141 (Iowa 2020) This case is a 5-2 decision interpreting Iowa Code section 356.7 prior to its amendment in 2020. The defendant was convicted of two crimes, one of which was a forcible felony, making him ineligible for bail while his appeal was pending. The sheriff obtained a civil judgment in the criminal case for jail fees related to the eighty- four days the defendant was in jail after sentencing but before being transported to prison. The forcible felony conviction was vacated on appeal and the defendant resentenced on the remaining charge. Upon resentencing, the district court failed to set aside the civil judgment for the post-conviction jail fees associated with the forcible felony charge that was dismissed on remand. Even though the jail fees were entered as a civil judgment, they were entered in the criminal case, so the court still had jurisdiction to address them on appeal. On the merits, the fees imposed pursuant to section 356.7 must be apportioned between the charge for which conviction was entered and the charge that was dismissed in the same way court costs are so apportioned under State v. McMurry. Since the jail fees at issue were clearly attributable to the dismissed charge rather than the charge for which the conviction was entered, the civil judgment for fees had to be reduced by the amount attributed to those eighty-four days. The result does not change just because the civil judgment was entered while the conviction was still in place, as that conviction was ultimately vacated following the appeal process.
334 New Trial Standard When Records Improperly Withheld State v. Barrett, 952 N.W.2d 308 (Iowa 2020) On appeal after the district court refused access to an alleged sex abuse victim’s medical records after an in camera review pursuant to Iowa Code section 622.10(4), the court of appeals held the records should have been provided to the defense because they contained exculpatory information. The case was remanded for a determination whether a new trial was necessary. This case answers the question of what standard to apply in deciding whether a new trial is required. In this situation, the district court is not to apply a weight-of-the-evidence standard. Instead, courts should apply the materiality standard from Brady and ask whether there exists “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” This analysis requires the court “to assess the possible effects nondisclosure had on trial preparation and strategy, not merely the weight of the evidence.”
Restitution – Jurisdiction & Final Orders State v. Hawk, 952 N.W.2d 314 (Iowa 2020) The district court entered a sentencing order in October 2019, which is after Albright but before the effective date of Senate File 457 (changing the procedure by which a defendant’s ability to pay category B restitution is determined). Even though the district court did not have final court-appointed attorney fee information at the time of sentencing, since the court made a reasonable-ability-to-pay determination that capped the defendant’s reimbursement obligation for those fees, the order was a final order and did not violate Albright. As a final order, it was not subject to the conversion provisions of SF 457, so the supreme court did not need to decide whether SF 457 would be applied retroactively. Also, as a final order, the defendant could challenge the reasonable-ability-to-pay determination on direct appeal and was not required to exhaust remedies under section 910.7 even if it was assumed SF 457 applied. On the merits, the district court did not abuse its discretion in ordering the defendant to pay a specified amount of category B restitution after considering his work experience, young age, and ability to work.
Restitution in Relation to Civil Liability State v. Waigand, 2021 WL 218893 (Iowa 2021) A farmer’s diversion of crops pledged to his bank resulted in him pleading guilty to ongoing criminal conduct. Restitution was limited to the diverted funds in the forty- eight transactions the farmer admitted to during his plea colloquy and could not include the bank’s entire loss on its loans to the farmer. The restitution order was not required to include provisions for offset against the criminal restitution for amounts recovered on a corresponding civil judgment, as such offset occurs by operation of law.
335 Sufficiency of Evidence – Stacked Inferences State v. Ernst, 2021 WL 297250 (Iowa 2021) Evidence was sufficient to sustain guilty verdict of attempted burglary with intent to commit theft. As circumstantial evidence is as probative as direct evidence, stacking inferences based on circumstantial evidence is permissible so long as the inferences do not become so attenuated as to become speculative. Also, intent to commit theft can reasonably be inferred from evidence of surreptitious entry and other circumstances. The other circumstances in this case included evidence ethe defendant had researched the location of the victim’s house, knew the victim’s work schedule (the victim was the defendant’s parole officer), and was aware no one would be home when the break-in occurred.
Statutory Right to Appeal, Breach of Plea Agreement, Etc. State v. Boldon, 2021 WL 297435 (Iowa 2021) Iowa Code section 814.6(1)(a)(3) requires good cause to appeal after a guilty plea. The provision took effect July 1, 2019, and it applies to all sentences imposed on or after that date, even if the guilty plea was taken before the effective date. As the defendant was challenging his sentence and not the plea, he established good cause to appeal. A claim that a prosecutor breached the plea agreement at sentencing is reviewable on direct appeal regardless of whether defense counsel objected. This principle is not changed by Iowa Code section 814.7 (requiring ineffective assistance of counsel claims to be addressed by postconviction relief rather than on direct appeal). Here, there was no breach of the plea agreement, as the prosecutor made the agreed-to recommendation and expressed no implied or express reservations about it. The agreement’s silence as to court costs meant there was no deal on that issue, so the prosecutor was free to argue for assessment of the costs to the defendant. While the sentencing court was required to consider mitigating factors of youth in sentencing this defendant, who was a juvenile when the crime was committed but an adult at the time of sentencing, the court was not required to consider mitigating factors of youth with respect to the defendant’s juvenile offense history and discount them because they were committed as a juvenile.
Prohibition on Pro Se Filings by Represented Party State v. Thompson, 2021 WL 401071 (Iowa 2021) Iowa Code section 814.6A prohibits a defendant represented by counsel from filing any documents, including briefs, reply briefs, or motions in any Iowa court. In a 4-3 decision, section 814.6A does not violate separation-of-powers provisions of the constitution.
336 DEBTOR / CREDITOR
Priority of Mortgage With Future-Advances Clause Blue Grass Savings Bank v. Community Bank & Trust Co., 941 N.W.2d 20 (Iowa 2020) Priority of a mortgage with a future-advances clause that satisfies the notice requirement of Iowa Code section 654.12A is limited to the principal amount stated in the notice (plus interest, costs, etc.) regardless of whether advances are made before or after a subsequent mortgage is recorded. As a result, when the first mortgage had a dragnet clause for all indebtedness owed, which included funds loaned prior to the recording of the second mortgage in an amount greatly exceeding the amount stated in the future-advances notice, the mortgage covered all indebtedness, but only had priority over the second mortgage holder up to the amount stated in the notice. Also, since a default rate of interest was not stated in the promissory notes, the first mortgage holder was not permitted to retroactively increase the default interest rate to 18% two-and-a-half hours before the summary judgment hearing and was limited to interest at the rate stated in the notes.
Bank Security Interest Versus Grain Elevator Drying and Storage Fees MidWestOne Bank v. Heartland Co-op, 941 N.W.2d 876 (Iowa 2020) In a dispute between a secured lender and grain elevator over priority to crop sale proceeds, the two-year statute of limitations of Iowa Code section 614.1(10) applies rather than the five-year period of section 614.1(4). The discovery rule does not apply to toll the two-year limitation period because: (1) the fundamental policies underlying the UCC favor a strict application of the limitation period; and (2) the discovery rule does not apply when the statute of limitation expressly states the triggering event (in this case, section 614.1(10) expressly starts the two-year clock on “the date of sale of the farm products”). While leaving the door open to the possibility of a different outcome under different facts, the court denied the elevator’s claim of unjust enrichment, choosing to adhere to “the UCC’s priority system to provide clarity, uniformity, and consistency in commercial transactions.”
Obtaining Adverse Party’s Legal Malpractice Claim by Execution Gray v. Oliver, 943 N.W.2d 617 (Iowa 2020) In a case of first impression, a judgment creditor cannot prosecute a claim for legal malpractice as successors in interest to their former litigation adversary where the claim for legal malpractice arose out of the suit in which the parties were adverse. The district court had the constitutional and statutory power to determine the merits of the issue even though it involved public policy questions and was a case of first impression. Also, the ruling does not infringe on the judgment creditor’s constitutional property rights, as the holding does not deprive the judgment creditor of property rights; it merely delineates the extent of the property right.
337
Statute of Limitations on Bank Loans – Tolling Principles Benskin, Inc. v. West Bank, 952 N.W.2d 292 (Iowa 2020) In a lawsuit brought by a borrower against a state bank regarding promissory notes executed by the borrower, the specific seven-year statute of limitations of Iowa Code section 524.221(2) applies rather than the general ten-year limitations period for written contracts set forth in section 614.1(5). The seven-year time-bar governed these contract claims filed in 2018 even though the written contracts were executed and allegedly breached before a 2011 amendment reduced the limitations period from eleven years to seven. The borrower’s claims for breach of implied duties of good faith and fair dealing were based on claims “founded on a written contract,” so were still barred by the seven-year limitation period of section 524.221(2). Based on the terms of section 524.221(2), the discovery rule does not apply to extend the seven- year limitation period. Equitable estoppel may apply to extend the limitation period of section 524.221(2). However, the borrower must still file suit within “a reasonable time after the estoppel ends and does not get a fresh seven years from that end date.” Therefore, all claims based on breach of contract, breach of implied duties of good faith and fair dealing, and fraud were properly dismissed via a motion to dismiss. As to the borrower’s slander of title claim, the claim survived a motion to dismiss because the petition alleged recording of the allegedly slanderous mortgage and recording satisfied the publication element for the tort of slander of title.
DIVORCE / FAMILY LAW
Support Under Chapter 236 Fishel v. Redenbaugh, 939 N.W.2d 660 (Iowa Ct. App. 2019) A successful plaintiff in a proceeding seeking relief from domestic abuse under Iowa Code chapter 236 may be awarded “a sum of money for the separate support and maintenance of the plaintiff and children under eighteen” even if the plaintiff is not otherwise eligible for such support. Section 236.5(1)(b)(6) creates an independent remedy of support even if the plaintiff would not otherwise be allowed to receive support (e.g., an unmarried couple). Such remedy is discretionary and is not required to be awarded, but the district court erred when it concluded it did not have the discretion to award support.
Alimony Factors In re Marriage of Mann, 943 N.W.2d 15 (Iowa 2020) Spousal abuse is not relevant on the question of alimony. Courts should consider the tax treatment of alimony in making awards and consider recently-enacted federal tax law that makes alimony payments non-deductible to the payor and non-income to the
338 recipient. Prior case law allocating percentages of income needs to be considered with these tax law changes in mind. Factors favoring an alimony award to husband included the sixteen-year marriage, marked disparity in income, the husband’s lack of a college degree, and the wife’s ability to afford alimony in some amount. Countervailing factors were the husband’s lack of contributions enhancing the wife’s earning ability, the fact the wife had obtained her college degree before the marriage, the lack of sacrifices by the husband to manage the household or provide domestic services, the husband’s failure to expand the economic prospects of his business or his domestic contributions, the higher property settlement the husband received due to the wife’s higher income, and the reduced amount of child support the husband had to pay due to the wife’s higher income. Based on the competing factors, the court declined to award the husband alimony.
Out-of-Country Spouse In re Marriage of Del Real, 948 N.W.2d 542 (Iowa Ct. App. 2020) The mother and youngest child of the couple moved to Mexico years before the husband filed for divorce in Iowa, where he resided. Treating Mexico as a “state,” as required by section 598B.102(15) of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Mexico was the home state of the child and there was no evidence Mexico declined to exercise jurisdiction. Therefore, Iowa courts had no subject matter jurisdiction to address custody of the youngest child even though the parties stipulated to custody and no one raised a jurisdictional objection. However, just because Iowa courts have no subject matter jurisdiction to determine custody, they did have jurisdiction to address child support for the youngest child. In calculating child support, the district court properly refused to impute minimum wage income to the mother due to her health problems that made her incapable of working. The court declined to address whether the husband was entitled to a downward deviation from the child support guidelines due to a claimed lower cost of living in Mexico because the father failed to present sufficient evidence establishing a lower cost of living.
Move of One Parent Upsetting Shared Care Thorpe v. Hostetler, 949 N.W.2d 1 (Iowa Ct. App. 2020) The parents were operating under a stipulated decree for a shared care arrangement. A few months after the stipulated decree was filed, the mother, continuing a pattern of moving frequently, moved approximately fifty-three miles away to live with a new boyfriend she had been dating a few months. The court found a substantial change of circumstances that made shared care unworkable in spite of the fact the mother did all the added transportation associated with her move and the father’s day-to-day life was not changed because of the mother’s efforts. The focus is on the child, not the parents, and it was not in the child’s long-term best interests to travel
339 approximately one hour in each direction repeatedly throughout the week to attend school and effectuate the toggling of time between the mother and father. Once it was determined shared care would not work, the court was required to determine which parent should have physical care. Even though the father worked long hours and delegated much of his parenting responsibility to his wife, the father’s stability in contrast to the mother’s instability resulted in the father receiving physical care.
EMPLOYMENT
Pre-Emption by Drug-Testing Statute & Attorney Fees Ferguson v. Exide Technologies, Inc., 936 N.W.2d 429 (Iowa 2019) When a civil cause of action is provided by the legislature in the same statute that creates the public policy to be enforced, the civil cause of action is the exclusive remedy for violation of that statute. Applying that standard, in a case of first impression, the civil cause of action provided by Iowa Code section 730.5 (addressing workplace drug-testing) is the exclusive remedy for a violation of section 730.5, so the common law wrongful discharge in violation of public policy cause of action must be dismissed. District court did not abuse its discretion by not going through entry- by-entry in determining the amount of attorney fees attributable to the statutory cause of action, as the district court is considered an expert on what constitutes a reasonable attorney fee and attorney fee claims should not result in a “second major litigation.”
Unemployment – Temporary Employment Agency Sladek v. Employment Appeal Bd., 939 N.W.2d 632 (Iowa 2020) Employee worked for a temporary employment agency. When told by her supervisor from the temp agency that her assignment at the place she had been working was ending due to poor job performance, the employee hung up. The employee did not call back for five weeks, and then only after finding out the employer had contested her claim for unemployment benefits. The issue came down to whether the employee voluntarily quit. Interpreting Iowa Code section 96.5(1)(j)(1), the court characterized the statute as containing (1) a rule, (2) an exception to the rule, and (3) an exception to the exception to the rule. The board’s finding that the employee voluntarily quit was supported by substantial evidence due to the employee hanging up on her boss and not calling back for five weeks. The safe harbor of section 96.5(1)(j)(1) did not apply because the employee did not seek reassignment within a reasonable time. The exception to the exception did not apply because the employee was already disqualified for benefits due to her voluntary quit without a request for reassignment.
340 EVIDENCE
Rape Shield Law – Claims of False Reports State v. Trane, 934 N.W.2d 447 (Iowa 2019) False allegations of sexual activity is not sexual behavior, so such statements fall outside both the letter and the spirit of the rape-shield law (Iowa Rule of Evidence 5.412). However, evidence of the allegedly false allegations of other sexual behavior may be admitted only through the rule 5.412 exceptions framework, which involves pretrial notice, a written offer of proof, and an in camera hearing. At that hearing, the district court will determine if the threshold of proof by a preponderance of the evidence that the other allegations were in fact false has been met. If that threshold is met, the district court must then determine whether the false allegations evidence is relevant and its probative value outweighs the danger of unfair prejudice.
Medical Malpractice – CME Records Eisenhauer ex rel. T.D. v. Henry County Health Center, 935 N.W.2d 1 (Iowa 2019) The jury found in favor of the doctor, nurses, and facility in this medical malpractice claim surrounding a birthing injury. Plaintiff had sought to introduce doctor’s continuing medical education (CME) records to show a lower percentage of CME was devoted to obstetrics than the percentage of the doctor’s work devoted to obstetrics. Trial court did not abuse its discretion in excluding the records, as they were not relevant on the issue at hand, which was whether the doctor violated his duty of care. However, plaintiff should have been permitted to use the CME records to impeach the doctor, who testified as an expert, to undermine his credibility by showing the doctor committed relatively few hours of CME to obstetrics. Nevertheless, the error was found to be harmless because other evidence was introduced concerning training and lack of experience.
Victim’s Propensity for Violence – Rule 5.405 State v. Lorenzo Baltazar, 935 N.W.2d 862 (Iowa 2019) A defendant asserting self-defense or justification may not use rule 5.405(b) to prove the victim’s aggressive or violent character by specific conduct of the victim unless the conduct was previously known to the defendant. Therefore, the trial court did not abuse its discretion in refusing admission of two videos showing the victim acting violently toward others near in time to the victim’s shooting death, because the defendant produced no evidence that he knew about the specific conduct shown on either video.
341 Child Sex Abuse Issues State v. Walker, 935 N.W.2d 874 (Iowa 2019) In trial for child sex abuse, since the defendant did not introduce any evidence establishing a sexual encounter between the victim and her young brother, evidence that mother had concerns that brother had been molested and may have been a danger to the victim was properly excluded. The evidence was marginally relevant at best (to argue victim had sexual knowledge from an encounter with someone other than the defendant), and was properly excluded under rule 5.403. If evidence of an encounter with the brother had been introduced, the evidence would be excluded under rule 5.412 because the defendant failed to file a timely notice for an exception and made no argument for an exemption from the filing deadline. There is no categorical hearsay exception for statements made by a child sex abuse victim to doctors. To introduce such statements, the State must lay foundation for the medical diagnosis and treatment exception under rule 5.803(4) by showing the child’s motive in making the statement was consistent with the purpose of promoting treatment and was of a type reasonably relied on by a physician in treatment or diagnosis. In child sex abuse cases, ascertaining the identity of the abuser is important for medical purposes because the child’s age prevents implementing self-care and parents are often ill-equipped to elicit the abuser’s identity. The State established this foundation in spite of the fact there was an 18-day delay between the assault and the doctor appointment given the likelihood sexual abuse requires treatment for emotional and psychological injuries as well as physical injuries. The defendant could not establish ineffective assistance of counsel for failing to object to emergency room nurse’s testimony about statements made by the victim and her mother regarding identity of the abuser. The defendant could not show prejudice because the evidence was cumulative to other evidence properly admitted and evidence of guilt was overwhelming.
In Camera Inspection of Records, Waiver of Privilege, & Vouching State v. Leedom, 938 N.W.2d 177 (Iowa 2020) District court properly denied defendant’s request for an ex parte hearing on a motion seeking in camera review of alleged victim’s mental health records, refusing to extend State v. Dahl, which allowed an ex parte hearing regarding hiring investigator at state expense in order to avoid disclosing defense strategy. District court improperly refused to conduct an in camera review of the records after defendant met the statutory requirements for such review set forth in Iowa Code section 622.10(4). In a case such as this, where there is an allegation of sexual abuse with no physical evidence, the case hinges on the victim’s credibility. In such cases, evidence that impeaches the victim is “exculpatory” within the meaning of the statute. Here, the absence of any reported abuse in a mandatory reporter’s notes would be exculpatory, as would descriptions in the notes showing material inconsistencies in the victim’s
342 description of events. The proper remedy for failure to conduct an in camera review is to conditionally affirm with remand for such review. If no exculpatory evidence is found, the case remains affirmed. If exculpatory evidence is found and meets the balancing test for admissibility, a new trial should be ordered. The court “encourage[d] district court judges in close cases to examine the records in camera” because this is the third time the court had reversed rulings denying in camera inspections with remand for such review. Also, a minor victim does not waive patient- therapist privilege by answering questions about abuse during a deposition or on cross-examination. As a minor, the witness lacks legal capacity to waive the privilege. Plus, the court has “long recognized that a privilege is not waived by answering questions on cross-examination” and a deposition taken by the accused’s attorney is effectively a cross-examination. Finally, State’s expert in this child sex abuse case did not improperly vouch for the child’s credibility. Expert’s testimony was general in nature describing why children delay disclosure, the grooming process, why children have an inability to recall specific dates, and the possibility that others can be in the room when abuse occurs. Since such testimony was not connected to the child in this case, there was no vouching and the testimony was permissible under our precedent.
Residual Hearsay Exception (Rule 5.807) State v. Veverka, 938 N.W.2d 197 (Iowa 2020) In this child sex abuse case, the State sought discretionary review of a preliminary ruling excluding a video of a forensic interview of the child. The State sought to admit the video under the residual hearsay exception in 5.807 (a rule combining former rules 5.803(24) and 5.804(b)(5)). Before evidence can be admitted under the rule, the district court must make five findings: (1) trustworthiness; (2) materiality; (3) necessity; (4) notice; and (5) service of the interests of justice. The district court has no discretion regarding admissibility of evidence on the basis of hearsay. The district court has no discretion to deny the admission of a statement on the grounds of hearsay if the statement falls within an exception and has no discretion to admit hearsay in the absence of a provision providing for it. This is why review of rulings on hearsay is for correction of legal error, in contrast to review for abuse of discretion with other evidentiary rulings. In making findings of trustworthiness, the district court should consider the indicia of trustworthiness as identified in relevant precedents and omit consideration of extraneous factors. Whether the interview was conducted for the purpose of creating testimony is not a relevant consideration with regard to the “service of the interests of justice” factor. Evidence does not meet the “necessity” factor merely because the State claims to need the evidence to prosecute certain categories of defenses. The residual exception “should be used sparingly” and “[t]here is no rule that allows for the automatic admission of certain categories or types of evidence under the residual exception,” including forensic interviews in child sex abuse cases.
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Vouching & Hearsay State v. Juste, 939 N.W.2d 664 (Iowa Ct. App. 2019) In child sexual abuse trial, nurse practitioner’s testimony that ninety-five percent or more of the time a child or adult is examined for sexual abuse, an exam of the person’s genitals is normal is not improper vouching testimony. The testimony was general and merely explained that sexual abuse does not always lead to physical trauma of a person’s genitalia, so it was not vouching. Victim’s prior consistent statements to a school counselor, to a nurse, and on a school survey were made after the motive to fabricate the allegations arose, so did not fit the definition of non-hearsay as a prior consistent statement pursuant to rule 5.801(d)(1)(B). However, admission of the evidence was not prejudicial. Regarding admission of employment records of a witness for impeachment, Iowa has not yet adopted the rule that the “hearsay upon hearsay problem” may be excused by the business-records exception adopted by the Eighth Circuit. Because there was no foundation for the identity of the declarant of statements provided in the employment application, the statements did not fulfill the requirements for the business-records exception and were inadmissible hearsay. However, the hearsay was duplicative of other evidence already admitted, so there was no prejudice.
Jury Instruction on Opposing Party’s Statements State v. Shorter, 945 N.W.2d 1 (Iowa 2020) An out-of-court statement by an opposing party is admissible as substantive evidence under Iowa Rule of Evidence 5.801(d)(2). However, the fact that such statements are admissible as substantive evidence at trial does not necessarily mean they can be equated with sworn trial testimony. Therefore, the outdated version of the Iowa State Bar Association Uniform Criminal Jury Instruction 200.44, which instructs such statements may be used “just as if they had been made at trial,” should not be used.
Other Causes of Death – No Child Restraint State v. Johnson, 950 N.W.2d 232 (Iowa 2020) The defendant was charged with homicide by intoxicated operation of a vehicle. The trial court did not abuse its discretion in refusing to allow the defendant to introduce evidence that the infant that was killed was not secured in a car seat. A defendant cannot use a homicide victim’s alleged contributory negligence as a defense to a homicide prosecution.
344 Suicidal Tendencies Not Character Evidence State v. Buelow, 951 N.W.2d 879 (Iowa 2020) The defendant was charged with murder. He asserted the victim committed suicide. The district court excluded all victim medical records and did not allow lay testimony on the victim’s suicidal disposition. The supreme court reversed. The victim’s mental health records were not inadmissible hearsay, as the records and the statements in them met exceptions as regularly conducted activity (rule 5.803(6)), then-existing state of mind (rule 5.803(3)), and statements made for medical diagnosis or treatment (rule 5.803(4)). Also, the mental health records and testimony regarding the victim’s mental health were relevant. Relevance may decay as time passes, but mental health diagnoses from a few years prior are “clearly relevant.” The relevance was not substantially outweighed by the dangers listed in rule 5.403. Evidence of a person’s suicidal disposition is not “character evidence,” so should not be excluded under rule 5.404. Finally, exclusion of the mental health records and testimony regarding the victim’s mental health was not harmless, as the State’s case was not overwhelming and both sides had presented expert testimony suggesting the physical scene better fit their theory of what occurred.
Cell Phone Tower Location Evidence State v. Boothby, 951 N.W.2d 859 (Iowa 2020) Cell phone records are hearsay. However, when accompanied by a certification establishing the foundation for a regularly conducted activity, they meet the self- authentication requirements of rule 5.902(11) and the hearsay exception for regularly conducted activity under rule 5.803(6). Also, declaring it to be the first case addressing lay versus expert opinion evidence since a rule change in 2017, the court holds that a lay witness is permitted to give opinions about the generalized location of a phone within the coverage area of the pinged tower, so long as the opinion is premised on factual information from the phone company. However, when a witness relies on specialized knowledge about how a cell tower functions, such as the numerous factors that determine why a phone pings off one cell tower instead of another, to opine about the coverage area of a tower or a cell phone’s location, that witness must first be qualified as an expert. Therefore, a law enforcement officer was permitted to review information from cell phone records to identify the relative range for each specific cell tower and Google Earth’s measurement features to identify the sectors and create a circle representing the coverage radius of each tower without being qualified as an expert.
345 INSURANCE
Residential Contractor Acting as Unlicensed Public Adjuster 33 Carpenters Constr., Inc. v. State Farm Life & Cas. Co., 939 N.W.2d 69 (Iowa 2020) 33 Carpenters Constr., Inc. v. Cincinnati Ins. Co., 939 N.W.2d 82 (Iowa 2020) 33 Carpenters Constr., Inc. v. IMT Ins. Co., 939 N.W.2d 95 (Iowa 2020) Residential construction contractor was acting as an unlicensed public adjuster by advertising to advocate on behalf of homeowners regarding hail damage to their houses, attempting to aid homeowners in negotiations with insurance companies, demanding to be present for the insurance company’s investigation of the houses, and conducting its own investigation. An assignment contract entered into by a residential contractor acting as an unlicensed public adjuster is void under Iowa Code section 103A.71(5). The court rejected the contractor’s argument that the Iowa Insurance Commissioner has sole authority to enforce the licensing requirements for public adjusters.
CGL Coverage for Gross Negligence Claims Against Co-Employee T.H.E. Ins. Co. v. Glen, 944 N.W.2d 655 (Iowa 2020) An employee at Adventureland was killed when a co-employee started a ride prematurely, causing the employee to be trapped in the ride mechanism. The deceased employee’s estate and family filed suit based on gross negligence against the co-employee. Adventureland’s insurance company filed this declaratory judgment action asserting no coverage under its CGL policy based on the argument that gross negligence is not an “occurrence” under the policy because it is not an accident. After reviewing the standards for various terms in the policy related to expected injury, intent, etc., the court held “[i]t is possible for a plaintiff to thread the needle by convincing a factfinder that acts or omissions of a coemployee gave rise to an expectation that an injury was more likely than not to occur, and thus amount to gross negligence, but was not ‘highly likely’ and therefore outside of coverage for accidents. . . . At this early stage of the proceeding, based on the broad nature of the pleadings, we cannot say there is no possibility that [the deceased employee] may not be able to convince a factfinder that he has a claim that amounts to gross negligence but is within the scope of the coverage of the CGL policy.” Therefore, the insurance company was not entitled to summary judgment.
346 JUVENILE
Private TPR – Extended Incarceration With Drug History In re B.H.A., 938 N.W.2d 227 (Iowa 2020) Father’s parental rights were terminated on the basis of abandonment in this private termination of parental rights (TPR) case. Father had a long drug history, had extensive criminal history, had not financially supported the child before incarceration, had not seen the child for nearly three years at the time of the TPR hearing, and was in federal prison for drug charges with an expected release date approximately six to eight years in the future. It was undisputed the father did not challenge the statutory grounds, but he challenged TPR on the best interests prong. In a 4-2 decision, the majority distinguishes In re Q.G., 911 N.W.2d 761 (Iowa 2018), by noting its “exceptional circumstances,” which included a stipulation regarding custody filed in a marriage dissolution proceeding four days before the mother filed the TPR proceeding. After distinguishing Q.G., the court found TPR to be in the child’s best interest.
Extensive Work Hours Prevent Placement In re Z.P., 948 N.W.2d 518 (Iowa 2020) Even though the child had never lived with the father, the child was “removed” from the father in the context of termination under Iowa Code section 232.116(1)(h)(3) because “[p]hysical removal from the mother is sufficient to start the statutory timelines counting toward termination as to either parent.” The child could not be placed with the father, in part, because his two jobs did not allow sufficient time to care for the child. Even though this harm to the child is not as egregious as many cases when termination occurs, juvenile law “is not a fault-based edifice like tort law” and is driven by federal law mandates for timely reunification. Additionally, besides the work hours issue, the father had never taken care of the child overnight, had limited visitation interactions (and those were not age-appropriate), had no driver’s license and relied on a co-worker to transport the young child, had an apartment that did not have accommodations for a young child, had no plan for getting the child to therapy or medical appointments, lacked knowledge of the child’s medical and psychological needs, had no support network, and had little to no flexibility to get off work when needed.
Substance-Related Disorder as Basis for Termination In re L.H., 949 N.W.2d 268 (Iowa Ct. App. 2020) Interpreting the grounds for termination of parental rights under section 232.116(1)(l), which provides for termination in specified situations involving a parent with a substance-related disorder, sufficient evidence supported a finding the mother had a “severe substance-related disorder” based on her diagnosed substance disorders. She presented a danger to self or others by driving while drugged and
347 causing one of the children at issue to be born with methamphetamine in the child’s system. Her relapse within a few months following completion of treatment supported the finding that her “prognosis indicates that the child will not be able to be returned to [her] custody within a reasonable period of time.”
Due Process – Telephone Hearings Due to COVID-19 In re A.H., 950 N.W.2d 27 (Iowa Ct. App. 2020) Requiring a termination hearing to be conducted by telephone conference call over the objection of the parents did not violate their due process rights in light of the COVID-19 pandemic and the supreme court supervisory orders related to the pandemic. The fact the parents were able to participate in the entire hearing by phone and the parents received frequent breaks to confer with counsel privately contributed to the court’s finding of no due process violation. The parents also failed to identify any risk of error or any part of the hearing they were not able to conduct adequately. They also failed to identify any additional safeguards the juvenile court should have employed beyond those provided. In addition to there being no due process violation, the juvenile court did not abuse its discretion in refusing to grant the parents’ request to postpone the hearing to a date when it could be conducted in person even though the children were in safe placements.
Displaying Pornographic Videos as Support for CINA Adjudication In re N.C., 952 N.W.2d 151 (Iowa 2020) Reversing the juvenile court’s determination the State had not proved a ground for CINA adjudication pursuant to Iowa Code section 232.2(6)(d) (imminent likelihood of sexual abuse), the court finds sufficient evidence to support adjudication based on the father’s sexual abuse of the child. The child was found credible based on the amount of detail provided by the child, the consistent nature of her reporting, and the father’s corroboration of portions of the incidents reported by the child. In light of the eight-year-old child’s report the father had shown her videos of people having sex, the father’s admission he had shown a “birds and the bees” video to the child supported adjudication. “To show sex videos to an eight-year-old child because she had a ‘boyfriend’ shows a lack of judgment that further justifies oversight and services.”
Prior Terminations Affecting Current TPR In re J.H., 952 N.W.2d 157 (Iowa 2020) When Iowa Code section 232.116(1)(g) is pled as a ground for termination, the juvenile court must specifically examine the parents’ past termination cases in deciding whether termination is appropriate in the current case. The father had his parental rights terminated to eight previous children. His therapist’s testimony about his progress was not credible, as the evidence established the therapist was not aware
348 of a great deal of relevant information about the father and his nearly twenty-year history of involvement with the DHS. The father’s history of substance and domestic abuse, his failure to learn how to care for the child’s medical needs, his refusal to interact with DHS and other service providers, and his mental limitations all supported termination. The court also highlighted the importance of separately identifying issues in the petition on appeal rather than blending them.
MISCELLANEOUS
Restrictions on Gifts to Private College Matter of Coe College, 935 N.W.2d 581 (Iowa 2019) The college received several Grant Wood paintings as gifts from a charitable trust that had subsequently dissolved. The gift letter included language that the paintings were given to the college “and that this would be their permanent home, hanging on the walls of [the college library].” The college sought declaratory relief that the gifts were unrestricted because treating them as restricted adversely affected the value of the college’s endowment fund due to a sharp rise in the value of the paintings. The court concluded the language in the gift letter restricted the gift. In the first case interpreting Iowa’s Uniform Prudent Management of Institutional Funds Act (UPMIFA)(Iowa Code chapter 540A), the court held the UPMIFA does not apply because the paintings are not “funds” but are instead “program-related assets.” Because the gift letter imposed restrictions on ownership rights, the letter may be deemed to establish a charitable trust even though it contained “no magic trust language.” Applying provisions of Iowa’s trust code (chapter 633A) and the common law cy pres doctrine, the court found it premature to consider the application of cy pres because there was no showing the gift restrictions could not be carried out at present, as the record did not demonstrate the college no longer wanted the paintings (or would prefer cash) or the paintings needed to be relocated because of other circumstances.
Official County Newspaper Designation Marcus News, Inc. v. O’Brien County Bd. of Supervisors, 935 N.W.2d 707 (Iowa 2019) In counties with less than 15,000 people, the board of supervisors is required to select two newspapers for official publications. The board must select the two newspapers with the largest number of bona fide yearly subscribers. Newspapers under common ownership and published in the same city are permitted to be combined for purposes of determining circulation when the newspapers have “approximately the same subscriber list” or when “offered for sale in or delivered to the same geographic area.” The court rejected the argument of Marcus News, Inc. that the relevant “geographic area” was the entire county. Based on the subscriber lists, the two newspapers owned
349 by Marcus News served different geographic areas. Therefore, the circulations of the two newspapers could not be combined to calculate Marcus News’s circulation. For the same reason, the two newspapers owned by a competing company should not be combined in calculating circulation of those two newspapers (both of which ended up being the two newspapers with the largest circulations).
Prepopulated Absentee Ballot Applications Democratic Senatorial Campaign v. Iowa Sec’y of State, 950 N.W.2d 1 (Iowa 2020) Iowa Code section 53.2 provided authority for the secretary of state to issue a directive requiring county auditors to distribute only blank absentee ballot request forms (i.e., the request forms could not be prepopulated with voter information).
Completing Deficient Absentee Ballot Applications League of United Lat. Amer. Cit. v. Iowa Sec’y of State, 950 N.W.2d 204 (Iowa 2020) Amendments to Iowa Code section 53.2(4) require county auditors who receive absentee ballot requests that are defective or incomplete to contact the applicant, rather than accessing a voter database to correct or complete the request form for the voter. In a 4-3 decision, the statute does not impose a significant burden on absentee voters. Challengers did not show a likelihood of success on the merits, so their temporary injunction request was denied.
Thirty-Day Time Limit to Appoint Judge State ex rel. Dickey v. Besler, 2021 WL 401276 (Iowa 2021) Any citizen who seeks to bring a quo warranto action to challenge an individual’s right to hold public office has standing if the citizen can articulate a colorable interest in the subject matter. In this action challenging the appointment of a district court judge based on the claim the governor failed to make the appointment within the thirty-day time limit provided by the constitution and statute, the challenging party had standing as an attorney practicing in the judge’s district. In a 5-1 decision, the claim was not justiciable because the governor (as the person with primary authority) and the chief justice (as the person with secondary authority) were the only two people with authority to make the appointment, and the chief justice had deferred to and accepted the governor’s appointment as timely.
MOTOR VEHICLES / OWI
Open Records Request for “Speed Camera” Violator Information Milligan v. Ottumwa Police Dept., 937 N.W.2d 97 (Iowa 2020) A police officer was issued a citation by a speed camera while in the city’s patrol
350 vehicle. In his private citizen capacity, he made an open records request under Iowa Code chapter 22 requesting the names of violators issued citations and names of violators not issued citations for the purpose of making sure the city “was enforcing their automated speed car enforcement fairly cross the board between all citizens.” Reversing a district court ruling requiring disclosure, the court, in a 4-2 decision, noted chapter 22 does not trump specific statutes that make certain records confidential. The federal Driver’s Privacy Protection Act (DPPA) regulates disclosure of personal information contained in records of state motor vehicle departments. Iowa Code section 321.11 essentially incorporates the strictures of the DPPA into the Iowa Code. None of the exceptions of the DPPA applied to this request, as the request was not made by a government agency, there was insufficient proof the names were needed for use in another proceeding, and the requested records were not related to safety, as speed camera citations are not “driving violations” within the meaning of the DPPA or section 321.11(2).
Request for Re-Test on Datamaster State v. Casper, 951 N.W.2d 435 (Iowa 2020) An officer does not violate section 321J.11(2), or violate the principles in Lukins, when the officer agrees to the detainee’s request for a retest on the machine that has already tested the detainee’s blood alcohol level (i.e., the Datamaster) without also informing the detainee of the statutory right to an independent test at the detainee’s expense. Under the principles in Lukins, a detainee who asks for something law enforcement refuses should be informed of similar alternatives that are available. However, when a detainee’s request is granted, the detainee is not entitled to be informed of other alternatives.
MUNICIPAL CORPORATIONS
Definition of “Facility” in Wind Energy Statute Mathis v. Iowa Utilities Board, 934 N.W.2d 423 (Iowa 2019) The Iowa Utilities Board (IUB) interprets “single site” within the definition of “facility” in Iowa Code section 476A.1(5) to mean all wind turbines connected to a common gathering line. As a result, the subset of turbines connected to a common gathering line that do not exceed twenty-five megawatts do not constitute a “facility” for which a certificate of public convenience, use, and necessity was required. After challenge to this interpretation by landowners, the court concludes the legislature has not vested the IUB with the authority to interpret section 476A.1(5), but nonetheless affirms IUB’s common-gathering-line interpretation due to the longstanding nature of this interpretation, the legislature’s apparent acquiescence to the IUB’s interpretation, and the legislature’s endorsement of a similar standard in a different wind-energy statute.
351 School District – No Obligation to Put Demolition of School on Ballot Young v. Iowa City Community School Dist., 934 N.W.2d 595 (Iowa 2019) School district planned to demolish an elementary school and use the land for additional space related to the high school. Citizens sought to place the issue of demolition of the school on the ballot, claiming it was a “disposition” of the school building. Finding demolition of a school building is not a “disposition” under Iowa Code section 278.1(1)(b), the court holds the school district properly determined the ballot measure was not “authorized by law,” so it was under no legal obligation to require the county auditor to place the matter on the ballot.
PROBATE / GUARDIANSHIP / CONSERVATORSHIP / ELDER
No Separate Suit for Wrongfully Inducing to Execute Will Youngblut v. Youngblut, 945 N.W.2d 25 (Iowa 2020) In a 5-2 decision, the court overturns precedent and holds a disappointed heir cannot decline to pursue a will contest and instead bring a later, separate lawsuit against one or more favored heirs for wrongfully inducing the testator to execute the will. A claim alleging the decedent’s will resulted from tortious interference by a beneficiary must be joined with a timely will contest under Iowa Code section 633.308. Otherwise, it is barred. The decision does not foreclose a plaintiff from pursuing additional remedies via a tortious-interference claim.
REAL PROPERTY / LANDLORD – TENANT
Mechanic’s Lien Foreclosure – Attorney Fees & Homestead Standard Water Control Systems, Inc. v. Jones, 938 N.W.2d 651 (Iowa 2020) Homestead rights generally prevail over a mechanic’s lien for attorney fees. Since neither the homestead law nor the mechanic’s lien statute contain specific language to the contrary, the homestead law prevails. However, the homeowners were required to raise their homestead exemption before the district court entered a foreclosure decree recognizing the contractor had a mechanic’s lien for both the unpaid principal amount of the contractor’s bill and attorney fees “senior and superior to any right, title or interest owned or claimed by” the homeowners – not later when the decree was being executed.
352 Breach of Right of First Refusal In re Estate of Franken, 944 N.W.2d 853 (Iowa 2020) Holders of a right of first refusal filed suit for damages against the estate of the party that granted the right of first refusal after the estate sold the land without offering it to the holders. The merger doctrine did not bar the holders’ claim, as the holders did not seek to enforce any collateral agreement not incorporated into the deed. The statute of frauds did not apply to the holders’ claim. Holders’ claim for damages was not an action seeking to enforce a possessory interest in the land, so Iowa Code section 614.17A did not bar their claim. Also, nothing in section 614.17A extinguished the holders’ right of first refusal or otherwise barred them from establishing such a right existed. Given that the holders’ right of first refusal was contained in the deed, the holders had established their right of first refusal.
Emotional Support Animals in Pet-Free Apartments Cohen v. Clark, 945 N.W.2d 792 (Iowa 2020) Apartment tenant with pet allergies sued landlord and neighboring tenant alleging breach of her lease’s “no pets” provision and interference with quiet enjoyment of her apartment when the landlord allowed neighboring tenant to have an emotional support animal. In what the majority in this 4-3 decision called a “highly fact-specific inquiry that balances the parties’ needs,” the landlord’s accommodation of the neighboring tenant’s emotional support dog was not reasonable because the plaintiff, who had pet allergies, had priority in time and the dog’s presence posed a direct threat to the plaintiff’s health. The priority in time is not dispositive, but is a factor to consider and it was the deciding factor in this case. The plaintiff was entitled to recover on her claims of breach of contract and breach of the covenant of quiet enjoyment. The majority noted the holding is specific to the facts of this case that does not set a “one-size-fits-all test” that will lead to the same result under different circumstances, such as when the animal is a service animal for a visually-disabled person.
SEARCH AND SEIZURE
Unreasonably Prolonging Traffic Stop State v. Salcedo, 935 N.W.2d 572 (Iowa 2019) Assuming without deciding the traffic stop was legal, the court reiterates it is permissible to inquire about details related to the mission of addressing the traffic infraction “and attend to related safety concerns.” Declining to decide the case under the Iowa constitution, the court finds, under the Fourth Amendment, the officer failed to obtain individualized suspicion of other criminal activity before unreasonably prolonging the traffic stop. The officer made no “effort to address Salcedo’s specific
353 traffic infraction,” as he did not ask questions about the traffic infraction, repeatedly thumbed through a rental car agreement in an apparent effort to stall until a drug dog arrived (which it did not), did not run an identity or criminal history check, and did not enter any information into a traffic citation.
Whether Blocking One-Lane Alley Is a Seizure State v. Fogg, 936 N.W.2d 664 (Iowa 2019) The defendant has the burden of proof as to whether a seizure occurred. Whether a seizure occurred is determined by the totality of the circumstances. In a 4-2 decision, under both constitutions, a seizure did not occur when an officer – who was watching a vehicle because it was driving very slowly at night and then parked in an alley – never activated emergency lights on the vehicle, parked at least twenty feet away from the suspect’s vehicle, approached on foot, did not shine a light into or knock on the suspect’s vehicle, and, when the suspect voluntarily exited her vehicle, engaged in conversation to ask if everything was okay. The fact the officer parked his vehicle facing the defendant’s vehicle, thus blocking the defendant’s forward path in the single-lane (but not one-way) alley, did not transform the encounter into a seizure. The alley was a public alley not posted for single-direction traffic, so the officer had as much right to pull into the alley going one direction and park as the defendant had to pull into the alley from the opposite direction and park. Commenting on the natural tendency for people to feel pressure to cooperate with law enforcement, a seizure only occurs when an officer adds to the inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse, even if making inquiries a private citizen would not.
Lake Panorama Not a Private Lake State v. Meyers, 938 N.W.2d 205 (Iowa 2020) A boat driver convicted of boating-while-intoxicated on Lake Panorama challenged the stop of the boat for a violation of Iowa Code 462A.12(4) (prohibiting blue lights on boats), claiming the statute did not apply to Lake Panorama because it is a private lake. In a 4-2 decision, flowing surface water in Iowa is legally open and available for public use regardless of who owns the land below it. The water in the Middle Raccoon River belonged to the public when the river was dammed to form Lake Panorama and the river above and below the lake remains water of the state today. When the dam was erected, it remained possible for a vessel to travel down the river into the lake. Since the river remains open to the public and a boat can legally get from the river to the lake, then the lake is also open to the public. The fact members of the Lake Panorama Association, who own the land surrounding and under the lake, claim the lake is private or attempted to use self-help in violation of a statute to block public access from the river to the lake does not change the outcome.
354 Smell of Marijuana as Basis for Search State v. McMullen, 940 N.W.2d 456 (Iowa Ct. App. 2019) The officer was qualified to detect the distinctive odor of marijuana. Such detection of the odor established probable cause for search of the vehicle from which the odor emanated. The officer’s description that “marijuana smells like marijuana” did not undermine the officer’s qualifications to detect the odor, as smells are inherently difficult to describe.
“Immediate Vicinity” of Residence Being Searched State v. Hunter, 947 N.W.2d 657 (Iowa Ct. App. 2020) Law enforcement officers executing a search warrant of a premises are permitted to detain the occupants or those in the “immediate vicinity” of the premises while a proper search is conducted. However, an occupant detained “a few blocks” from the residence to be searched is not in the “immediate vicinity” and cannot be detained pursuant to the warrant, even when officers saw the occupant drive away from the residence shortly before the search began. Information from a cell phone seized from the illegally-detained occupant was fruit of the poisonous tree and was not subject to the inevitable discovery exception to the rule requiring suppression of illegally- obtained evidence.
TAXATION
Capital Gain Exclusion From Income Upon Sale of Farmland Christensen v. Iowa Dept. of Revenue, 944 N.W.2d 895 (Iowa 2020) The department properly determined that capital gains the taxpayer earned from the sale of farmland she inherited from her father and leased on a cash-rent basis did not qualify for the exclusion from Iowa income tax allowed under Iowa Code section 422.7(21)(a). The taxpayer and her husband did not “materially participate” in the business of farming by cash renting the property. Administrative rules’ distinction between leases of farmland and other types of real property is valid and the taxpayer could not avoid the farm-specific rules.
TORTS
Medical Malpractice – Jury Instructions Eisenhauer ex rel. T.D. v. Henry County Health Center, 935 N.W.2d 1 (Iowa 2019) The jury found in favor of the doctor, nurses, and facility in this medical malpractice claim surrounding a birthing injury. Regarding challenges to jury instructions, the trial
355 court is entitled to choose its own language in submitting an issue and need not adopt the form requested by a party. Here, the jury was adequately instructed concerning the plaintiff’s specifications of negligence, as the instructions covered each alleged act or omission supported by the evidence.
Required Notice Prior to Dramshop Action Hollingshead v. DC Misfits, LLC, 937 N.W.2d 616 (Iowa 2020) Person injured at a bar sent notice of intent to file a dramshop action pursuant to Iowa Code section 123.93. Section 123.93 requires notice to the liquor license holder or its insurance carrier. The notice was sent to the insurance company for the entity that held the liquor license prior to the date of injury rather than the entity that held the liquor license on the date of injury. The two entities had no apparent connection, but the insurance company for the prior entity was also the insurance company for the correct entity. In a 5-1 decision, the court holds the notice substantially complied with section 123.93. Despite misidentifying the liquor license holder, the notice gave the correct insurance company ample notification that the claim was against the bar known as Misfits, no matter who owned it.
Bad Faith, Remittitur, and Punitive Damages Thornton v. American Interstate Ins. Co., 940 N.W.2d 1 (Iowa 2020) In this bad faith claim alleging delay in paying worker’s compensation benefits, the injured worker failed to offer substantial evidence supporting the jury’s award of damages for alleged delay in providing a replacement wheelchair, so that award was taken away. Regarding the claim for delay in paying permanent total disability benefits, the evidence only supported damages of a reduced amount from that awarded by the jury. After a thorough review of the history and legal standards pertaining to punitive damages and due process challenges to them, on de novo review, the court found reprehensible conduct but reduced the jury’s punitive damage award from $6.75 million to $500,000 to comply with due process standards. Based on the narrow circumstances here, which involved some damages that were able to be calculated with certainty and others that were not challenged, a conditional remittitur in lieu of a new trial was not required. Instead, the case was remanded for entry of judgment in a specified amount ($58,452.42 of compensatory damages and $500,000.00 of punitive damages).
Continuing Storm Doctrine Still Good Law Gries v. Ames Ecumenical Housing, 944 N.W.2d 626 (Iowa 2020) The continuing storm doctrine is consistent with the Restatement (Third) of Torts and remains good law now that sections 7 and 51 of the Restatement (Third) have been adopted in Iowa. When the doctrine applies, a land possessor has no duty to remove natural accumulations of snow or ice during an ongoing storm or for a reasonable
356 time after the storm ceases. However, mere precipitation is not enough to constitute a storm sufficient to relieve the land possessor of the duty to remove or ameliorate the accumulations. There must be meaningful, ongoing accumulation. Since there was a factual dispute over whether there was a continuing storm, summary judgment should not have been granted. At trial, the jury should be instructed on the doctrine and the jury will determine whether there was a sufficient storm. One concurring justice argued for abandoning the continuing storm doctrine.
Public-Duty Doctrine & State-of-the-Art Defense Breese v. City of Burlington, 945 N.W.2d 12 (Iowa 2020) A bicyclist was injured when she struck a tree branch while riding on a sewer box connected to a public pathway and fell approximately ten feet from the sewer box to the ground. The court noted the public-duty doctrine is more likely to be applied to bar a claim when a government employee negligently fails to act and allows harm to occur (nonfeasance) than when the employee negligently acts and causes harm (malfeasance), although the court noted the distinction is a “gray area.” Noting this case does not fall into either category, the court declined to apply the doctrine, so summary judgment for the city based on the doctrine was error. Disavowing any language to the contrary in prior cases, the state-of-the-art defense in Iowa Code section 670.4(1)(h) is an affirmative defense and the burden of proving the defense is on the party invoking it. Since there were factual disputes as to whether the changes to the trail system occurring between 1980 and 1992 were state of the art, summary judgment based on the defense was not appropriate.
Constitutional Tort Claims – Individual Capacity Wagner v. State, 952 N.W.2d 843 (Iowa 2020) A mother, individually and as administrator of her son’s estate, brought claims in federal court against a DNR officer who fatally shot her son while working in the officer’s official capacity. Answering certified questions from the federal court, the supreme court held in a 6-1 decision: (1) the procedural requirements of the Iowa Tort Claims Act (Iowa Code chapter 669) (the ITCA) apply to the mother’s state constitutional tort claims; (2) the available remedy under the ITCA for excessive force by a law enforcement officer are not inadequate based on the unavailability of punitive damages; (3) the mother’s claims under the Iowa Constitution are subject to the administrative exhaustion requirements of Iowa Code section 669.5(1); and (4) the mother was required to bring her Iowa constitutional claims in the appropriate Iowa district court under Iowa Code section 669.4.
357 WORKER’S COMPENSATION
Jurisdiction – Contract of Hire Location Niday v. Roehl Transport, Inc., 934 N.W.2d 29 (Iowa Ct. App. 2019) Trucking employment contract between Wisconsin employer and Iowa employee was formed when they struck a bargain during their telephone call, which was confirmed by the employer’s letter to the employee. Since the employee was in Iowa when the phone call took place and the confirmation letter was sent to the employee’s residence in Iowa, the “contract of hire” was made in Iowa even though there were conditions to continued obligations to perform the contract (e.g., attending training, passing drug test, etc.). Because the contract of hire was made in Iowa and the employee regularly worked in Iowa, the requirements of Iowa Code section 85.71(1)(b) were satisfied such that the employer was responsible for Iowa workers compensation benefits owed to the employee for an injury occurring in Kentucky.
Class Certification – Exhaustion of Work Comp Remedies Roland v. Annett Holdings, Inc., 940 N.W.2d 752 (Iowa 2020) Trucking company with drivers all over the country had their truck driver employees sign a memorandum of understanding (MOU) requiring injured drivers to travel to Des Moines for a light-duty work program regardless of where they resided. A class action suit was brought seeking to certify a class consisting of drivers who signed the MOU and were compelled to travel to Des Moines for the light-duty work program. In a 5-1 decision, the court found class certification to be inappropriate because the commonality requirement was lacking, as individual issues predominated over common claims. In addition, class certification would circumvent each driver’s obligation to exhaust remedies for alternate medical care under Iowa Code chapter 85. The district court lacked subject matter jurisdiction over claims of class members who had not adjudicated their claims before the workers’ compensation commissioner.
Cumulative Injury – New Injury Versus Aggravation of Old Gumm v. Easter Seal Society of Iowa, 943 N.W.2d 23 (Iowa 2020) Where a claimant has received disability benefits for a prior compensable injury, the claimant is limited to the review-reopening remedy for additional disability benefits, including its three-year statute of limitations, unless the claimant can prove the claimant has suffered another injury. If the subsequent injury is a cumulative injury, it must be a distinct and discrete injury, not merely the aggravation of the prior injury due to regular work activities.
358 Compromise Settlement Language Releases Gross Negligence Claim Terry v. Dorothy, 950 N.W.2d 246 (Iowa 2020) An injured worker reached a compromise settlement with the employer. The settlement documents signed by the worker included release of the employer, the workers compensation carrier, and “any of their . . . employees” from any and all liability. The worker and his spouse later filed a gross negligence claim against a co- employee. Addressing summary judgment in favor of the co-employee, the supreme court held a gross negligence claim is a common law claim, not a statutory claim, and it was not extinguished under section 85.20 when the commissioner approved the settlement of the statutory claim. However, the language in the settlement documents extinguished the worker’s negligence claims and his wife’s consortium claims (because the consortium claim depended on the validity of the underlying claim of the worker). Since it was not raised on appeal, the court did not consider whether the wife’s signature was required to release her loss of consortium claim.
359 Section 3
D.
COVID-19 and Challenges to the Attorney-Client Relationship
Leon F. Spies, Iowa City
360 COVID-19 AND CHALLENGES TO ACCESS TO COUNSEL
Leon F. Spies [email protected]
The public health and logistical challenges precipitated by the coronavirus pandemic endanger not only a criminal defendant’s Sixth Amendment right to counsel but also the right to effective, ethical representation. The trust, candor and confidence essential to the attorney-client relationship are compromised when physical isolation and communication barriers hinder meaningful access to counsel.
Impact on the Choice of Counsel. Subject to certain limitations, the right to the assistance of counsel includes a defendant’s right to counsel of the defendant’s choice.1 Lawyers, especially those who by age or underlying conditions are vulnerable to infection, may be reluctant to represent defendants in settings exposing them to risk of contracting COVID-19.2 Defendants represented by counsel in high-risk categories also face the probability that their counsel may be compelled to withdraw in order to avoid exposure to illness.3
1 United States v. Gonzalez-Lopez, 584 U.S. 140, 146 (2006) (the Sixth Amendment right to counsel “commands, not that a trial be fair, but that a particular guarantee of fairness be provided – to wit, that the accused be defended by the counsel he believes best.”) 2 Duggan, “Maryland public defender complains of ‘superspreader’ court hearings,” Washington Post, November 24, 2020. 3 In May 2020 a group of national organizations, including the National Association of Criminal Defense Lawyers, the Association of Prosecuting Attorneys, and the Center for HIV Law & Policy called for vaccine distribution to prioritize judges, prosecutors, defense counsel, defendants and other stakeholders in the criminal justice system to ensure their vaccination prior to resumption of normal operations. Proposed Public Health and Public Safety Pathways for Criminal Justice Responses to COVID-19 (May 2020) (available at www.nacdl.org).
361 Impact on Meaningful Interaction between Lawyer and Client.
Similarly daunting to creation of a meaningful professional relationship is the lack of face-to-face interaction between lawyer and client often imposed by COVID- mandated physical or technical barriers or other health concerns. Social and psychological research shows that “people evaluate those with whom they work face-to-face more positive than those with whom they work over a video connection. When decision makers interact with the defendant through the barrier of technology, they are likely to be less sensitive to the impact of negative decisions on the defendant.”4 In-person meetings are critical to the lawyer’s duty to establish trust and confidence with their clients and to assure the lawyer’s ability to evaluate the client’s capacity to understand the proceedings.5
Impact on Communications between Lawyer and Client. The barriers to creation of an effective lawyer-client relationship also impede a defendant’s ability to communicate with counsel in a confidential manner. Incarcerated defendants unable to meet with counsel other than by phone or videoconferencing may not be assured that their conversations are unmonitored. Correctional officer shortages and limited phone access make it difficult to schedule calls.6
4 Poulin, “Criminal Justice and Videoconferencing Technology: The Remote Defendant,” 78 Tulane Law Review 1089, 1118 (2004). 5 See Criminal Justice Standards and Best Practices During the COVID-19 Pandemic, Federal Defenders, CJA Panel Representatives for the SDNY and EDNY, and New York Council of Defense Lawyers (May 2020); Poulin, supra note 3 at 1129 6“D.C. Jail Inmates with Coronavirus Barred from Access to Lawyers, Family, Showers and Changes of Clothing, Inspectors Say,” Washington Post, April 15, 2020. The U.S. District Court for the District of Maryland has ordered
362 Access to counsel is similarly difficult for defendants not detained for whom there exists a substantial “digital divide.”
According to the Pew Research Center, there are substantial disparities in access to internet broadband and computers according to income and race. Americans who live in rural communities are also less likely to have access to broadband internet. The same is true for people with disabilities, who may also require special technology in order to engage in online activities such as remote court proceedings.7
The closing of businesses and libraries – ordinarily areas where clients could access the internet – likewise poses a hurdle for contacting counsel.
Unemployment may hinder a defendant’s ability to pay phone and internet bills.
Pretrial release provisions (especially in internet crime prosecutions), seizure of a defendant’s computers and cell phones, and restrictive discovery policies also impede a client’s ability to review sometimes voluminous discovery materials and exhibits, locate potential witness, assist with pretrial investigation, prepare for testifying and cross-examination, or evaluate proposed plea agreements.8
In-Court Challenges. A defendant’s right to privately consult with counsel in court also faces major barriers. Many courts using video proceedings have no
that custodians of Maryland detainees ensure reasonable access to counsel and that counsel have reasonable access to their clients, by telephone “at least.” In Re: COVID-19 Pandemic Procedures, Misc. No.20-146 (April 23, 2020). 7 Bannon and Adelstein, The Impact of Video Proceedings on Fairness and Access to Justice in Court, Brennan Center for Justice, New York University School of Law, September 10, 2020. “Roughly three-in-ten adults with household incomes below $30,000 a year (29%) don’t own a smartphone. More than four-in-ten don’t have home broadband services (44%) or a traditional computer.” Anderson and Kumar, “Digital Divide Persists Even as Lower- Income Americans Make Gains in Tech Adoption,” Pew Research Center: Fact Tank (May 7, 2019). 8 For example, pretrial discovery policies in the districts of Iowa bar counsel from copying and disseminating discovery materials.
363 provisions to enable private communications between lawyers and clients in separate locations, and even secure phone lines make non-verbal communications difficult and hard for clients to provide counsel with relevant information.9 Of major concern are studies showing that virtual court technology could have a negative impact on the attorney-client relationship.10 A defendant’s confidence in his counsel may be reduced, and a lawyer’s ability to advise, reassure or control a client made more difficult.11 In similar legal settings, a vast majority of defense lawyers believed that private attorney-client communication via videoconferencing was simply impossible.12
In an effort to protect a defendant’s right to consult with his attorney while using the protective measures necessitated by COVID-19, the COVID-19 Judicial
Task Force for the United States Courts has recommended that courts “develop reasonable accommodations to allow for socially distanced attorney-client conferences during trial. Possibilities include secure text-messaging capability to allow counsel and client to communicate mid-trial” as well as separate secure
9 Bellone, “Private Attorney-Client Communications and the Effect of Videoconferencing in the Courtroom,” 8 Journal of International Commercial Law and Technology 44-45 (2013); Poulin at 1130. 10 Gourdet, Witwer, Langton et al., “Court Appearances in Criminal Proceedings Through Telepresence: Identifying Research and Practical Needs to Preserve Fairness While Leveraging New Technology,” Rand Corporation, 2020, p. 5; Bellone, Videoconferencing in the Courts: An Exploratory Study of Videoconferencing Impact on the Attorney- Client Relationship in Massachusetts, dissertation, Northeastern University, Boston, Mass, (March 2015). As of November 30, 2020: https://repository.library.northeastern.edu/files/neu:349724/fulltext.pdf. 11 Davis, “Talking Heads – Virtual Reality and the Presence of Defendants in Court,” 75 Fla. Bar. J. 2, 28 (Feb. 2001); Poulin, supra note 5 at 1129. 12 Grant et al., Videoconferencing in Removal Proceedings: A Case Study of the Chicago Immigration Court, The Legal Assistance Fdn. of Metropolitan Chicago & Chicago Appleseed Fund for Justice 38-39 (Aug.2005) (observing problems related to access to counsel, presentation of evidence, and interpretation).
364 space for conferences outside the courtroom, and use of white-noise to mask privileged communications.13
13 COVID-19 Judicial Task Force, Report of the Jury Subgroup, Conducting Jury Trials and Convening Grand Juries During the Pandemic, June 4, 2020, pp. 12-13.
365 Section 3
E.
ETHICS Update
Nicholas (Tré) Critelli, III Director Office of Professional Regulation
Tara M. van Brederode Assistant Director for Attorney Discipline Office of Professional Regulation
366 2/22/21
1
Impact of Pandemic on OPR entities
• Bar Examination • CLE • July – masked • Removal of cap on unmoderated CLE • Feb – remote • Change in requirements in 2021 • No more biennium • Client Security • 1 hour of ethics • Change to remote auditing • 1 hour of wellness OR diversity • Historic concerns of increase claims • Need for more trustee • Lawyers Trust Account Interest • Grievance Hearings • +40% decrease from last year • In-person hearings create greater need for commissioners • Interpreters • Marked decrease in applicants
2
367 1 2/22/21
• <3-month investigative backlog. • Minimal prosecution backlog. • Fewer complaints overall (this is consistent with national trends and is very notable for 2020). • Quick case-processing for dismissals (<120 days on average). • More education and prevention (35+ CLE presentations in 2019, ~20 virtual presentations in 2020). • Paperless as of 1/1/2020!
3
Complaints Received and Opened Complaints Received Complaints Opened 867 818 769
674
579 588 547 554 516 520 524 531 494 501 465 426 389 373 366 365 337 328 336
213
20 06 20 07 20 08 20 09 20 10 20 11 20 12 20 13 20 14 20 15 20 16 20 17 20 18 20 19 20 20
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368 2 2/22/21
• 2019: • 401 file closures = 320 respondents • 336 files opened = 275 respondents • 140 lawyers received sanctions (including private admonitions)
• 2020: • 267 file closures = 217 respondents • 213 files opened = 183 respondents • 113 lawyers received sanctions (including private admonitions)
• There are ~ 9,600 active Iowa attorneys
5
ADB Complaint Processing 502 475 481 482 441 426 429 401 389 397 388
365 316 318 336 319 328 267 Not Opened 248 264 234 Opened 199 Board Dispositions 213 Closed
2015 2016 2017 2018 2019 2020
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369 3 2/22/21
for Iowa lawyers practicing after the COVID-19 pandemic
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•Emergency response •Ongoing Prevention •Recovery, sustainability, and well-being
8
370 4 2/22/21
• Office management issues – access to needed systems and resources • The technology gap among lawyers • Overreliance on staff tech capabilities • Combination of paper and paperless work – what is a “file”? • Client communication methods (including online document transfer and Zoom) • Staff issues – supervision, morale, illness, overlap between personal and work life • Client issues – maintaining contact and managing expectations • Personal issues – physical and mental health problems, addiction, STRESS, lack of future planning (both continuity of operations and $ if beginning retirement process)
9
Rule 32:1.3 DILIGENCE A lawyer shall act with reasonable diligence and promptness in representing a client. [1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.
32:1.4 COMMUNICATION (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in rule 32:1.0(e), is required by these rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Iowa Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
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371 5 2/22/21
Rule 32:1.6 CONFIDENTIALITY (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b [permissive disclosure provisions]) or required by paragraph (c [mandatory disclosure provisions]).
32:1.16 DECLINING OR TERMINATING REPRESENTATION (a) …[A] lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: … (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client ….
32:5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANCE Comment [1] explains: “Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that nonlawyers …act in a way compatible with the professional obligations of the lawyer.…Paragraph (c) specifies the circumstances in which a lawyer is responsible for the conduct of such nonlawyers within or outside the firm that would be a violation of the Iowa Rules of Professional Conduct if engaged in by a lawyer.
11
• Our rules are all about reasonableness: • “reasonable diligence and promptness,” • “reasonably consult,” • “reasonably informed,” • “reasonable requests for information,” • “shall explain to the extent reasonably necessary [for client] to make informed decisions”
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372 6 2/22/21
•Make a list of EVERY ACTIVE MATTER in your caseload right now. •For each, note at least the two “next steps” you need to take and highlight all associated deadlines.
13
• Give clients written notice of how to reach you and how you are handling client communications (one big e-mail with bcc:, even texting if that’s your thing, a letter). • Keep copies of this written notice for your file. It’s inevitable that some unhappy clients will use this crisis as the basis for a complaint against you.
• Give careful thought to how and in what settings you will meet with clients (if at all). Use technology where possible, but be sure to consider privacy concerns and share those with the client. (Yes, Zoom is okay as long as you and the client agree – but be ready to consider alternate platforms if we hear more privacy worries.) • Make your clients talk on the phone! • If you don’t share your cell phone number, consider a Google Voice number. • Remember *67 for outgoing calls if you don’t want your call to be subject to Caller ID.
• Be alert to possible changes in Court appearances and scheduling as the Court adjusts to new requirements and is faced with the inevitable illnesses that we may expect. Warn your clients NOW that things will move slowly but you’ll do what you can to protect them and keep them updated.
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373 7 2/22/21
• Consider: • Access to electronic and paper files • Remote use of telephones and voicemail • Safe handling of mail and deliveries • Access to e-mail • Logins for EDMS • Access to the office calendar • Protection and maintenance of trust account records • Access to and protection of trust account funds • Access to your business operating account • Payroll and benefits
• A great start – Our “Attorney Self-Assessment” (click through to OPR at www.iowacourts.gov!)
15
• Competence in using technology – Iowa R. Prof’l Conduct 32:1.1 Competence – comment 8: “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”
• Maintaining confidentiality – Iowa R. Prof’l Conduct 31:1.6(d): “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
• Supervising staff while working remotely – Iowa Rs. Prof’l Conduct 32:5.1, 5.2, and 5.3 • Trust accounts – Iowa R. Prof’l Conduct 32:1.15 and related trust account rules – Ensure constant oversight and monthly triple-reconciliations. People make more mistakes when stressed, and you’ll find those mistakes more quickly if you triple- reconcile (bank statement, your check register, and your individual client ledgers must match!) monthly.
16
374 8 2/22/21
• Iowa R. Prof’l Conduct 32:1.16 requires that you decline or withdraw from representation if “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.”
• Comment [1]: “A lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest, and to completion.”
• The need for legal services during a crisis is evident. However, you must ensure that you are physically and mentally able to take on and complete the representation.
17
• Things we don’t want to think about: • Quarantine, extended illness, incapacity, or death
• Things we can’t stop thinking about right now: • Quarantine, extended illness, incapacity, or death
*and while you’re at it, make (or update) your will
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375 9 2/22/21
19
• “PMBR” is a term coined by Professor Ted Schneyer to refer to a regulatory approach designed to promote ethical law practice by assisting lawyers with practice management. • Lawyer regulatory process has been complaint driven (reactive), rather than prevention driven (proactive) • Majority of disciplinary complaints are for “practice management” issues such as lack of communication, neglect, etc. • Many attorneys lack training and skills necessary to identify deficiencies in their practice • PMBR is a process to help attorneys with their professional development both by giving attorneys an opportunity to engage in self-examination and by providing resources to assist attorneys in developing workable solutions to common challenges.
20
376 10 2/22/21
• Adapted with permission from the “Colorado Consolidated Lawyer Self- Assessment” published by the Proactive Management-based Subcommittee of the Colorado Supreme Court Office of Attorney Regulation Counsel
• Created and maintained by Attorney Disciplinary Board • Contains 314 questions • Brief commentary on ethical implications • 100+ hyperlinked resources
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• Competence (45) • Staff & Office Management (43) • Communication (31) • Financial Management (57)
• Confidentiality (20) • Access to Justice & Client Development (26) • Conflicts of Interest (41) • Wellness & Inclusivity (26) • Records Management (25)
Contains 314 questions Brief commentary on ethical implications 100+ hyperlinked resources
22
377 11 2/22/21
23
24
378 12 2/22/21
•2016 ABA Commission on Lawyer Assistance Programs/Hazelden Betty Ford Foundation Study •Surveyed nearly 13,000 practicing lawyers
•2016 Survey of Law Student Well-Being •Surveyed 3,300 law students •2020 National Judicial Stress and Resiliency Survey •Surveyed 1,034 judges
25
ß and 1 in 5 Judges in the 2020 study
26
379 13 2/22/21
36% General U.S. Population
Ju dges
All Attorneys
21% Attorneys under 30 years old
9.5%* 6.6%
*many believe Judges under-report "Problematic Drinking" = hazardous, possible dependence alcohol patterns due to perceived stigma
27
•25% at risk for alcohol use disorder •17% depression •14% severe anxiety •23% mild/moderate anxiety •6% suicidal thoughts in last year
28
380 14 2/22/21
• Reported Judicial stressors are widely shared and include: • Import of decisions • Heavy docket/long hours/not enough staff support • Pro se litigants • Unprepared lawyers/incivility/lack of professionalism among counsel • Contentious family law litigants/dealing with the same issues over and over again • Judicial isolation
29
• fatigue and low energy (38.8% in 2020 Judge survey) • sleep disturbance (36%) • disturbed attention and concentration (32.3%) • not having initiative (22.9%) • Preoccupation with negative thoughts (20%) • work is no longer meaningful (17.8%) • can’t wait for the day’s work to end (16.7%) • depressed mood (15.3%) • nothing to look forward to (12.6%) • feel increasingly numb to pleas of urgency (11.2%) • care little about trial outcomes (6.9%)
30
381 15 2/22/21
• http://lawyerwellbeing.net/ • August 2017 report: “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.” • Task force members came from the following entities and groups: • American Bar Association (ABA) Commission on Lawyer Assistance Programs (CoLAP) • ABA Standing Committee on Professionalism • ABA Center for Professional Responsibility • ABA Young Lawyers Division • ABA Law Practice Division Attorney Wellbeing Committee • The National Organization of Bar Counsel (NOBC) • Association of Professional Responsibility Lawyers (APRL) • National Conference of Chief Justices • National Conference of Bar Examiners
31
• “The current state of lawyers’ health cannot support a profession dedicated to client service and dependent on the public trust.” • The report included concrete, specific recommendations for the following groups of “stakeholders” whose participation was deemed essential for meaningful change: • Judges • Regulators • Legal Employers • Law Schools • Bar Associations • Lawyers’ Professional Liability Carriers • Lawyers’ Assistance Programs
32
382 16 2/22/21
33
Well-Being as Part of Professional Responsibility
34
383 17 2/22/21
• “Regulators play a vital role in fostering individual lawyer well-being and a professional culture that makes it possible.”
• We must “[t]ransform the profession’s perception of regulators from police to partner.”
• We are already taking some of the recommended actions for regulators: • Centralized intake and tracking complaints through case-management system (to identify struggling lawyers before their practices fall apart) • Deferral of discipline in certain cases • Focusing on prevention and proactive management-based programming to minimize risk and allow attorneys to feel more in control. • Recognizing that obtaining treatment for substance abuse and mental health conditions is a sign of strength and should be considered as a mitigating factor in disciplinary cases.
35
•Separate entities; separate funding. •We cannot share information with one another without lawyer permission. •We agree about “the woeful state of lawyer well-being.” •We work together within the constraints of our respective confidentiality obligations. •Many lawyers give us permission to talk or collaborate on deferrals of discipline.
36
384 18 2/22/21
• Acknowledge the Problems and Take Responsibility • Leaders Should Demonstrate a Personal Commitment to Well-Being • Facilitate, Destigmatize, and Encourage Help-Seeking Behaviors • Foster Collegiality and Respectful Engagement Throughout the Profession • Promote Diversity & Inclusivity • Create Meaningful Mentoring and Sponsorship Programs
• Enhance Lawyers’ Sense of Control • Guide and Support the Transition of Older Lawyers • Use Monitoring to Support Recovery from Substance Use Disorders
37
• Adopt Regulatory Objectives that Prioritize Lawyer Well-Bring • Expand CLE to Include Well-Being Topics • Implement Proactive Management-Based Programs (PMBP/PMBR) that Include Lawyer Well-Being Components • Adopt a Centralized Grievance [Complaint] Intake System to Promptly Identify Well-Being Concerns • Modify Confidentiality Rules to Allow One-Way Sharing of Lawyer Well- Being Related Information from Regulators to Lawyer Assistance Programs • Adopt Diversion or Deferral Programs and Other Alternatives to Discipline
38
385 19 2/22/21
• ADB requested and was given a “liaison Justice” for attorney well-being: Justice Tom Waterman. • Our Court is actively working with ADB on probation and other disciplinary approaches to help struggling lawyers remain in practice with appropriate safeguards for the public.
• ADB will propose a rule change allowing ADB to disclose concerns about lawyers directly to the Lawyer Assistance Program (one-way disclosure ONLY).
39
Iowa Lawyer Assistance Program • Funded primarily with fees paid to support disciplinary system
• Confidential assistance to Iowa lawyers
• Not just drug/alcohol problems—also mental health issues, compassion fatigue, and stress concerns
• No reporting to Attorney Disciplinary Board
• Contact:
• Hugh Grady, Director
• Tel. (800) 243-1533
• http://www.iowalap.org
40
386 20