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I 536309 I 6-9123-1 N8-95 (Q 1995 West Publishing (? West, An American company serving tbe legal world. UtaliD UTAH BAR JOURNAL Published by The Utah State Bar 645 South 200 East Salt Lake City, Utah 84111 Vol. 8 NO.9 November 1995 Telephone (801) 531-9077 President's Message...... 4 President by Dennis V. Haslam Dennis V. Haslam Commissioner's Report...... 5 President-Elect by James C. Jenkins Steven M. Kaufman OVERVIEW OF THE TRIAL PRACTICE SEMINAR ...... 7 Executive Director by Robert D. Maack John C. Baldwin MOTIONS IN LIMINE - PLAINTIFF'S MOTIONS...... 8 Bar Journal Committee by Philip R. Fishier and Editorial Board MOTIONS IN LIMINE - DEFENDANT'S MOTIONS...... 10 Editor by P. Keith Nelson Calvin E. Thorpe JURY SELECTION ...... 14 Associate Editors by Gordon L. Roberts & Honorable Timothy R. Hanson M. Karlynn Hinman William D. Holyoak DEMONSTRATIVE EVIDENCE ...... 17 Randall L. Romrell by E. Scott Savage Articles Editors PLAINTIFF'S OPENING STATEMENT ...... 20 Christopher Burke by Daniel L. Berman Lee S. McCullough DEFENDANT'S OPENING STATEMENT ...... 21 Letters Editor by Carman E. Kipp Victoria Kidman TRIAL OBJECTIONS ...... 25 Views from the Bench Editors by Stephen B. Nebeker Judge Michael L. Hutchings DIRECT EXAMINATION ...... 32 Judge Stephen VanDyke by Ray R. Christensen Legislative Report Editor CROSS EXAMINATION ...... 35 Lisa Watts Baskin by Robert S. Campbell, Jr. Case Summaries Editors PLAINTIFF'S EXPERTS ...... 38 Scott A. Hagen by W. Brent Wilcox Clark R Nielsen DEFENSE EXPERTS ...... 41 Book Review Editor by Harold G. Christensen Betsy L. Ross PLAINTIFF'S CLOSING STATEMENT ...... 43 "How to . . ." Editors by Richard W. Giauque Brad Betebenner David Hartvigsen DEFENDANT'S CLOSING STATEMENT ...... 46 Patrick Hendrickson by David K. Watkiss

Judicial Profies Editors POST TRIAL MOTIONS ...... 48 Mamie Funk by H. James Clegg Derek Pullan Stephen K. Christiansen State Bar News ...... 50 ADREditor Utah Bar Foundation ...... 53 Cherie P. Shanteau CLE CaIendar ...... 54 Law and Technology Editor R Bruce Findlay Classified Ads...... 55 Young Lawyer Representative COVER: Provo Peak and Friends, Utah County by Phillp E. Lowry, Provo, Utah. Michael O. Zabriskie Mark E. Burns Members of the Utah Bar who are interested in having photographs they have taken of Utah scenes published on the cover of the Utah Bar Journal should contact Randall L Romrell. Associate General Counsel. Huutsman Glen Cook Chemical Corporation. 2000 Eagle Gate Tower, Salt Lake City. Utah, 841 i 1,532-5200. Send both the slide, David Brown transparency or print of each photograph you want to be considered. David Erickson The Utah Bar Journal is published monthly, except July and August. by the Utah State Bar. One copy of each Thomas Jepperson issue is furnished to members as part of their State Bar dues. Subscription price to others, $30; single copies. J. Craig Smith $4.00. For information on advertising rates and space reservation. call or write Utah State Bar offices. Denver Snuffer Judge Homer Wilkinson Statements or opinions expressed by contributors are not necessarily those of the Utah State Bar, and publica- Committee Liaison tion of advertisements is not to be considered an endorsement of the product or service advertised. Maud C. Thurman Copyright (Q 1995 by the Utah State Bar. All rights reserved.

November 1995 3 - --

Vision, Mission and Goals of the Bar

By Dennis V. Haslam

To represent lawyers in the State of The public standing of lawyers in soci- Afew weeksCommissioners ago, the met Board to review of Barcrit- Utah and to serve the public and the ety is aIso an important issue to our mem- ical issues and goals facing the bar and to legal profession by promoting justice, bers. Our image, in light of recent legal reexamine the vision of the bar and its mis- professional excellence, civility, ethics, proceedings televised nationally, is proba- sion. We waxed philosophical for hours, respect for, and understanding of, the law. bly not too good. Negative public percep- parroted a few Bruce S. Jenkins stories n is pretty hard to argue with this one tions must be changed by setting good about Iawyers, beat on our chests saying except, of course, that we have probably Ieft examples of doing the right thing, both pri- what good peopIe lawyers are, and listened out a few important messages. Nonetheless, vately and publicly. to former Justice D. Frank Wilkins insert a in a relatively simpIe statement, without too few Abraham Lincolnisms. much legalese, we think we've got it. The bar GOALS In the end, we came up, tentatively of should adopt this statement as its mission. Five goals were adopted by the course and subject to your input, with a Each element of the statement is achievabIe Commission: "Vision" of the Utah State Bar, and a Mission if it is reflected in the conduct of all members 1. To promote the administration of justice. Statement, Critical Issues and Goals. of the bar. 2. To uphold and elevate the standards í of courtesy, ethics, competence, profes- VISION CRITICAL ISSUES sionalism, public service and collegiality in A famous disk jockey once said that you We reviewed the many critical issues fac- the legal profession. Do unto other Iawyers as should keep your feet on the ground and ing the bar. In our current environment, the you would have other lawyers do unto you. reach for the stars. Well, here is our Vision: social issues include increasing poverty, vio- 3. To educate the public about the rule of To Iead society in the creation of a lent youth crimes, breakdown of the family, law and the public's responsibilities under justice system that is understood, val- physical abuse, racial discrimination and low the law and to increase public understand- ued, respected and accessibIe to all. income citizens who are unabIe to obtain ing of the roIe of the legal profession within We have much to do in improving the access to the legaI system. the system of justice. public's understanding of our justice sys- Practice issues are particuIarIy significant 4. To provide improved access to legal tem. Once the public understands it they for solo and small firm practitioners. As you services for the public. will value and respect it. As lawyers, we know, approximately 40% to 50% ofIawyers 5. To promote the value of lawyers in need to take the lead in making legal ser- nationwide are small firm and solo practi- the Iegal system. vices accessible to everyone. tioners. Those Iawyers need access to infor- The vision, mission statement, issues mation in order to remain current with IegaI and goals are the fabric of our bar. If you MISSION and technological changes. We are working like any of these ideas, Iet us know. If you We adopted the following as the to get Utah lawyers closer to the web of the don't, let us know. If they can be improved, Mission Statement for the Utah State Bar: ABA internet. let us know that, too.

4 Vol. 8 No.9 The Public Image of Lawyers

By James C. Jenkins, Bar Commissioner, First Division

to promote the good in our profession and the their unique educational skills and training Perhapspurpose the single of an organized most important Bar is to qualities of our system. It is easy to focus on for the improvement and benefit of the promote public confidence in the judiciaI the OJ. Simpson case and its examples of community. system. In a democracy, the integrity and professionaI acrimony and Iegal posturing, Rather than accept or ignore the criti- efficiency of an institution is dependent judicial disorder, and the commercialization cisms of our system and profession, I upon its public support, and pubIic support of triaL. Yet the public needs to be reminded believe it is our duty to inform and remind is affected by the image the institution por- that such is not representative of the judiciary the critics and the generaI public of who we trays to the public and the experience the or the IegaI profession, nor is it necessariIy are and what we do. When we improve the pubIic has with the institution. the modeI for resolution of controversy. The public image of Iawyers, we build the pub- Attorneys of the Utah Bar support legal pubIic needs to be reminded that the over- lic's confidence in Iawyers and the judicial services to the poor and disadvantaged, whelming majority of attorneys and judges system. contribute to the regulation of judiciaI con- are people who have devoted their lives to The mission of the Utah Bar should be to duct and lawyer discipIine and the unIawfuI order, justice and equality. They are peopIe make better lawyers and improve public practice of law. Utah lawyers participate in who serve their community outside their respect for the profession. I am honored to continuing legal education to improve com- occupation as religious leaders, volunteers be a lawyer. I consider it a privilege to be a petency and professionalism. We advocate on civic boards, commissions and commit- member of the Utah Bar. I am pleased with principles of justice and promote many tees, and as local government Ieaders on the accomplishments of Utah lawyers. We

other improvements to the law. schoo I boards, city councils, zoning commis- need not apologize for our profession, but Perhaps the public has taken our professions, and other organizations. They are PTA rather we should continue to strive to hon- sion and the Iegal system for granted. leaders, scout leaders, little league and soccer orably serve our clients and the community, Certainly it is much easier to sell magazines coaches, poIice instructors, volunteers at to improve our skills and services, and to and newspapers or commerciaI air time nursing homes, and civic leaders. Lawyers otherwise help earn and maintain public with controversy and criticism, than with are called upon, and willingly serve, in a respect. optimism and education. We must continue myriad of volunteer assignments sharing

November 1995 5 ~I

THE LAW FIRM OF WORKMAN WORKMAN, NYDEGGER & SEELEY NYDEaûER A PROFESSIONAL CORPORATION & SEELEY A PROFESSIONAL CORPORATION TAKES PLEASURE IN ANNOUNCING THAT H. Ross WORKMAN RICK D. NYDEGGER DAVID O. SEELEY BRENT P. LORIMER JEFFREY L. RANCK THOMAS R. VUKSINICK CHARLES J. VEVERKA KENT S. BURNINGHAM JONATHAN D. WOOD LARRY R. LAYCOCK ROBYN L. PHILLIPS TODD E. ZENGER DAVID B. DELLENBACH JONATHANW. RICHARDS TIMOTHY M. FARRLL DAVID R. WRIGHT JOHN C. STRINGHAM MICHAEL F. KRIEGER BRADLEY K. DESANDRO HAVE JOINED THE FIRM As ASSOCIATES JOHN M. GUYN GREGORY M. TAYLOR DANA L. TANGREN

ERIC L. MASCH OFF LENA r. VINITSKAYA KEVIN B. LAURENCE

GREGORY V. BEAN BRIAN C. KUNZLER HAS JOINED THE FIRM AS A SUSAN K. MORRIS REGISTERED PATENT AGENT JEFFREY L. RANCK CHARLES J. VEVERKA JONATHAN D. WOOD WORKMAN, NYDEGGER & SEELEY ROBYN L. PHILLIPS DAVID B. DELLENBACH ATTORNEYS AT LAW Ii TIMOTHY M. FARRELL 1000 EAGLE GATE TOWER 60 EAST SOUTH TEMPLE STREET SALT LAKE CITY UTAH 84111 REGISTERED PATENT AGENT TELEPHONE (801) 533-9800 LENA r. VINITSKAYA FACSIMILE (801) 328-1707

PATENT, TRADEMARK, COPYRIGHT, OF COUNSEL TRADE SECRETS, UNFAIR COMPETITION, LICENSING AND COMPLEX LITIGATION ALLEN R. JENSEN

h Overview of the Trial Practice Seminar

By Robert D. Maack

. 1. Each Had Mastered His Craft: Each of Time waswas heldwhen by thethe public legal in profession high esteem. the lawyers has a deep and broad based know- Lawyers were considered to be Brahmans ledge and understanding of evidence, proof our society and to pursue a career in the cedure and the substantive law in his field that law was considered to be a high calling. comes from experience and dedicated focus. In recent times, however, the profession 2. Honesty and Ethics: Each of the is under siege, the public is cynicaI and lawyers has a reputation for being trustwor- lawyer jokes abound. ¡- thy. Their words are still their bonds and Paradoxically applications to law they stand as exampIes of what Iawyers schools are stil very high and entry into the ought to be. profession is still vigorously sought. 3. Civility, Dignity and Professionalism: One of the goals of the American Board Many good lawyers are possessed of the first of Trial Advocates (ABOT A) is to strive to two qualities; what sets the premier trial enhance the image of the profession. Not Iawyers apart is the dignity and integrity they merely for personal satisfaction, but because bring to the proceedings. The lawyers selected the entire premise of the American legal for the Seminar have reputations for deport- system depends upon the public's faith and ment and gentility both in and out of the confidence not only in the fairness, but the ROBERT D. MAACK, program chair for court room. They are proof that a lawyer timeliness, of the law as a means of dispute the Ultimate Utah Trial Notebook, is a can at once be both a strong litigator, a fiercely resolution and social control. senior trial attorney with the Salt Lake vigorous advocate and still be a gentleman Without public confidence, the system City firm of Campbell Maack & Sessions. who tries his case with grace and style. cannot function optimally. The solution can He specializes in litigation involving com- From post-trial jury interviews, we learn plex scientific issues and has served as only lie with the members of the profession. Regional Trial Counsel for Honda Motor that for the most part jurors come to serve on The idea for the Premier Trial Lawyer's Company and Westinghouse Corporation. jury duty with high expectations and take Seminar sprang from the Trial Notebook In that capacity, he has been lead trial their responsibility very seriously. seminars that began in New York City, council and had oversight and supervi- They expect a lot from the judicial California and Texas with one important sory responsibilities for litigation process and quickly become disillusioned difference. Rather than seIecting just good throughout the United States. President of when lawyers are unprepared or disorga- the Utah Chapter of the American Board nized, when there is rancor among counsel journeyman trial lawyers, the decision was of Trial Advocates, Mr. Maack is also a made to invite the very best triaI Iawyers in Fellow of the American College of Trial or if the proceedings degenerate into a the state. Lawyers and -Master of the Bench, shouting match or common argument. Having tried cases all over the United American Inn of Court I. It was the goal of the Premier Trial States, I began to develop a broader Lawyer's Seminar to pass the knowledge of prospective and a new appreciation for the one generation of trial lawyers onto the next unusually high quality of trial practice that States with Iarger Bar memberships. and to preserve what might otherwise be Iost. still exists in the Intermountain area. In Utah triaI lawyers stil do deveIop a Studies show that a juror's faith and Possibly due to Utah's relativeIy small personal reputation based on accompIishments, confidence in the fundamentaI fairness of population, Utah courts have not yet turned whether good or bad, and not just through the system is renewed when the judge and into the overcrowded and impersonaI litiga- notoriety. AccordingIy, in casting the partici- the counsel conduct the triaI with dignity, tion factories that now exist in many large pants for the Utah Trial Notebook Seminar, a civility and professionalism. That is what metropolitan areas. decision was made, not merely to invite good they expect and that is what the deserve. In Utah, most of the judges know most competent triaI lawyers, but to swing for the The following premier trial Iawyers have of the lawyers who try cases. In Utah, most fence and invite the best of the best - the mastered the technique of litigation and of the lawyers know most of the lawyers very best, those Utah based trial lawyers who done much to maintain the integrity of the who try cases. As a consequence, a lawyer truly are the premier trial lawyers in their fields. judicial process. They do us all proud. establishes a reputation among his or her In anaIyzing the faculty, it is immediately Through this seminar they once again serve fellows at the Bar and a lawyer cannot dis- apparent that each of the presenters has at as examples to the younger members of the appear into the anonymity that exists in least three fundamental things in common: Bar of what a trial lawyer ought to be.

November 1995 7 --

Motions in Limine - Plaintiff's Motions 'I

I By Philp R. Fishier

INTRODUCTION trial conferences which involve "such other The Latin term "in Iimine" Iiterally matters as may aid in the disposition of means "(oJn or at the threshold; at the very the case"). beginning; preliminarily.'" Thus, a motion . Utah R. Civ. Proc. 10 (form of pleadings in limine is simply a preliminary motion and other matters). made and generally decided prior to triaL. . Utah Code Jud. Admin. R. 4-501 (discussing In Utah the motion in limine is used general procedure for filing motions). most frequently to determine evidentiary issues, however, the term has also been Criminal applied to various procedural motions . Utah R. Crimi P. 12(b )(2) ("Any which are not necessarily restricted to mat- request for rulings on the admissibility of ters of evidence. ' evidence, which is capable of determina- The motion in limine is one of the litigation without the trial of the general issue tor's most useful procedural tools. Indeed, may be raised prior to trial by written cases are often won or lost on the motions, motion."). and the motion in limine is "one of the most . Utah R. Civ. P. 81(e) (directing that civil powerful weapons in the litigator's arsenaL'" rules govern any aspect of criminal pro- PHILIP R. FlSHLER, former judge and ceedings where not in conflict with other HISTORICAL DEVELOPMENT rules, statutes, or constitutional require- The term "motion in limine" first presiding judge of the Third Judicial ments). appeared in Utah case law in Bridges v. District Court of Utah, practices with the Note that Utah R. Evid. 611(a) gives the Union Pacijïc Railroad Co., 488 P.2d 738, Salt Lake City firm of Strong & Hanni in court broad discretionary powers in con- 739 (Utah 1971) (affirming trial court pre- trolling witness interrogation, testimony, trial ruling to exclude opinion testimony the areas of medical malpractiCe, insur- and presentation of evidence. that railroad crossing was hazardous). The ance defense, products liability and pro- first appearance of the motion in American STANDARD OF case law was in Bradford v. Birmingham fessionalliabilty defense. He is a Fellow APPELLATE REVIEW

Electric Co., 149 So. 729 (Ala. 1933), of the American College of Trial Lawyers, The court applies a standard of review although it was not until the 1970's that the Master of the Bench of the American Inn appropriate to the substance of the motion. motion in limine became a wideIy accepted There is no different standard applied practice in litigation. of Court II and a member of DRI and the because the issue was raised and decided on Utah Defense Lawyer's Association. a motion in Iimine. See Hil V. Dickerson, SCOPE OF APPLICATION 839 P.2d 309, 311 (Utah App. 1992) Generally, a motion in limine is con- (applying abuse of discretion standard in fined to matters regarding admission or and would not require the testimony of an regard to admissibiIity of evidence). exclusion of evidence;3 however, the term expert); Prowswood, Inc. v. Mountain Fuel has recently been applied by the Utah court Supply Co., 676 P.2d 952, 953 (Utah 1984) EFFECT OF RULING & NECESSITY TO OBJECT to a variety of procedural motions as welL. (referring to "motion in limine to dismiss See State v. Payne, 1995 LEXIS 22 (Utah pIaintiff's fraud claim"). Once a matter is raised and definitiveIy March 21, 1995) (motion in limine raised to decided by the court it is not necessary to determine issue of jurisdiction); Dalley v. AUTHORITY AND FORM object at trial to preserve the issue for Utah Valley Regional Medical Center, 791 Like many other jurisdictions, Utah has appeaL. Merely raising the issue on a P.2d 193, 195-200 (Utah 1990) (implying no specific rule which addresses the form or motion in limine is, however, by itself, plaintiff used a motion in limine in a med- use of motions in limine. Authority may be not enough. If the court defers the matter ical malpractice case to establish that an inferred from various civil and criminal rules. for decision at trial, the party opposing the injury was of a type that does not occur in ruling at trial must make a specific and the absence of negligence; thus, plaintiff Civil timeIy objection in order to preserve the couId apply the doctrine of res ipsa loquitur . Utah R. Civ. P. 16(a)(lI) (discussing pre- issue for purposes of appeaL. 8 Vol. 8 No, 9 . Issue preserved motion to exclude testimony regarding process of having to leave the courtroom . Onyeabor v. Pro Roofing, Inc., 787 P.2d defendant's flight from scene of accident to while the attorneys argue evidentiary 525, 528 (Utah App. 1990) (finding issue support plaintiff's negligence claim. issues. preserved for appeal even though plaintiff PrejudiciaI effect outweighed probative 2. Saves time at triaI did not object to testimony at trial, where value. Fisher v. Trapp, 748 P.2d 204, 204-05 . Judge, jury, parties court denied plaintiff's motion to exclude (Utah App. 1988). . Avoids lengthy sidebars, objections, testimony of defendant's expert). - Wrongful death. Remanding for new and offers of proof at trial trial where trial court denied pIaintiff's 3. Puts opponent on guard Issue not preserved motion in limine to exclude evidence of aIco- . Opponent must be careful not to inad- . Billings v. Nielson, 738 P.2d 1047, 1048 hoI consumption the day prior to drowning vertently go into an area prohibited by (Utah App. 1987) (finding issue waived on accident. Pearce v. Wistisen, 701 P.2d 489, the court's ruIing on the motion in limine appeaI where judge reserved ruling on 493-94 (Utah 1985). 4. Issues are simplified at trial by eliminat- pIaintiff's motion to exclude documents ing or clarifying technicaI matters regard- and defendant did not offer the documents . Experts ing evidence. at trial). - Fraudulent misrepresentation claim. 5. Opportunity for carefuI consideration . State v. Saunders, 259 U.A.R. 24, 27 & Affirming grant of defendant's motion to and a fair decision n.9 (Utah App. 1995) (failure to object to preclude pIaintiff from calling expert where . Parties can fully brief their sides of the prosecutor's comments concerning defendant's witness list was submitted issue uncharged incidents of sexuaI abuse shortly before triaL. Radclife v. Akhavan, . Judge may be more patient and take amounted to waiver even though triaI court 875 P.2d 608, 611 (Utah App. 1994); Hill v. time to conduct necessary research and had previousIy ruled that such evidence Dickerson, 839 P.2d 309, 311 (Utah App. baIancing of aIternatives in making a would be excluded). Note that in the 1992) (same in claim for dental malpractice). decision Saunders case defense counsel "opened the . Judge is more likely to tak/e the time to door" by eliciting testimony on the subject. give reasons for a ruling than during the Id. Furthermore, the court rejected the course of triaI defendant's ineffectiveness claims because "No need to raise objection in 6. Foundation for appellate review it reasoned that defense counsel may have . In limine proceedings may provide a made a tacticaI decision not to object in an front of jury. Jury won't wonder better record of arguments and rationale effort to avoid focusing the jury's attention what they're missing at sidebar underlying court's decision on the incidents. Id. at n.9. or have to deal with the tedious DISADVANTAGES process of having to leave the EXAMPLES OF 1. Sacrificing of surprise APPLICATION IN UTAH courtroom while the attorneys . Gives the opponent a preview of strategy · Relevance argue evidentiary issues." . Opponent has time to respond carefully - Slip and fall accident. Affirming trial whereas at trial there may be insufficient court decision on defendant's motion in time for creative thinking limine to exclude "prior fall" testimony if 2. Time in pretrial not based on same location and time as sub- · Hearsay . Much time could be wasted in briefing ject of the claim but approving of admission - AutomobiIe accident. Affirming denial and deciding an issue that may be oflim- of testimony which met those parameters. of plaintiff's motion in limine to exclude ited importance Erikson v. Wasatch Manor Inc., 802 P.2d deceased doctor's testimony as hearsay 3. Judges don't like to decide in a vacuum 1323, 1325-26 (Utah App. 1990). because it was admissible under Rule 803(4) . Might want to weigh cumulative effect - AutomobiIe products liability claim. of evidence at trial Affirming trial court's granting of pIain- (statements for purposes of medical diagnosis or treatment). Hansen v. Heath, 852 P.2d . See if nonreIevant evidence becomes tiff's motion to exclude evidence regarding 977,978-79 (Utah 1993). reIevant in the context of the triaI use of seatbeIts. Whitehead v. American 4. AdditionaI paperwork. Motors Sales Corp., 801 P.2d 920, 927-28 · Miscellaneous IBLACK'S LAW DICTIONARY 708 (5th ed. 1979). (Utah 1990). - Just compensation proceeding. Decision 2William s. Lerach, Invoking the Motion in Limine. CaL - Excessive use of force. Affirming pursuant to motion in limine to assume pres- Lawyer, Nov. 1988. at 94, 94. denial of defendant policeman's motion to ence of a planned interchange for purpose of 3"A motion in limine, in plain English. is a pretrial motion to exclude "inflammatory" letter from police exclude certain evidence." Reiser v. Lohner, 641 P.2d 93, 100 determining value of property prior to con- department to plaintiff. Meyers v. Salt Lake (Utah 1982) (Stewart. J., dissenting) (medical malpractice demnation. UDOT v. 6200 South Associates, case affirming trial court's exclusion of evidence). Note that City Corp., 747 P.2d 1058, 1059-60 (Utah the motion may be used to establish the admissibility of evi- 872 P.2d 462, 469-70 (Utah App. 1994). App. 1987). dence as welL ADVANTAGES . Prejudice 1. No need to raise objection in front of jury - Auto-pedestrian Injury action. . Jury won't wonder what they're missing Affirming court's granting of defendant's at sidebar or have to deal with the tedious

Novemher 1995 9 Motions in Limine - Defendant's Motions

By P. Keith Nelson i

.I i. BACKGROUND the Cat in the Bag, 23 SPG Brief 49 (Spring A. Definition 1994). Motions in limine have also been 1. "In limine. On or at the threshold; at used to "address claims and defenses as the very beginning; preliminarily. Any welL." Robert G. Johnston & Thomas P. motion, whether used before or during trial, Higgins, Motions in Limine.' Use and by which exclusion is sought of anticipated Consequences in Ilinois, 26 John Marshall prejudicial evidence." Black's Law L. Rev. 305, 308 (1993). In Dalley v. Utah Dictionary 787 (6th ed. 1990). Valley Regional Medical Center, 791 P.2d 2. "Motion in limine. A pretriaI motion 193, 195 (Utah 1990), the "plaintiff filed a requesting court to prohibit opposing coun- motion in limine seeking the trial court's sel from referring to or offering evidence determination that the injury was of a type on matters so highly prejudicial to moving that does not occur in the absence of negli- party that curative instructions cannot pre- gence and that expert testimony was there- vent predispositional effect on jury." fore unnecessary." After hearing all of the Black's Law Dictionary, supra, at 1013-14. motions, the trial court granted defendant's 3. "A motion in Iimine, in plain English, motions for summary judgment because is a pretrial motion to exclude certain evi- plaintiff failed to produce expert testimony dence." Reiser v. Lohner, 641 P.2d 93, 100 P. KEITH NELSON, president and share- sufficient to establish foundation for res ipsa loquitur doctrine. Id. The Utah' (Utah 1982) (Stewart, 1., dissenting). holder of Richards, Brandt, Miler & 4. "A motion in Iimine, sometimes Supreme Court reversed because the doc- termed a motion to bar or a motion to Nelson, specializes in general civillitiga- trine of res ipsa loquitur raised material exclude, is analogous to a pretrial motion to tion with an emphasis on professionallia- issues of fact inappropriate for summary suppress in a criminal case. The primary bility defense and an additional judgment. Id. difference is that the motion to suppress is Additionally, in Utah Department of concentration in mediation. A Fellow in not based on the rules of evidence but upon Transportation v. 6200 South Assoc., 872 a defendant's constitutional rights." James the American College of Trial Lawyers P.2d 462, 469 (Utah App. 1994) cert. E. Sullivan & Rose Marie Lipinski, Recent and a member of DRI, Mr. Nelson has denied, 890 P.2d 1034 (Utah 1994), "(t)he Trends in Motions in Limine, 78 IlL. B. J. been involved in several high profile trial court ruled at the hearing on the 244,244 (May 1990). motion in limine that the property's value cases, including the Fashion Place Mall B. Scope & Purpose before condemnation was to be determined l. A motion in limine is used to exclude roof collapse, the Wilberg Mine fire and by assuming the presence of the 1-215 dia- evidence which couId be objected to at triaI, the shooting of John Singer. mond interchange. . .". that is irrelevant or unduIy prejudicial Finally, in Prowswood, Inc. v. Mountain before it is referred to in the presence of the Fuel Supply Co., 676 P.2d 952, 953 (Utah jury. 3 Witkin Evidence § 2011, at 1969 (3d Sullivan & Lipinski, supra, at 244. 1984), pursuant to defendant's motion in . ed. 1986). The "(p)urpose of such motion is 3. "Although the motion in Iimine is limine, the court dismissed plaintiff's claim rt to avoid injection into triaI of matters which particularly well suited to evidence with for negligent misrepresentation. are irreIevant, inadmissible, and prejudicial potentially inflammatory characteristics out- Some courts, however, may be reluctant and granting motion is not a ruling on evi- weighing whatever materiaIity it may pos- to grant a motion in limine if it is a substi- dence and, where properly drawn, granting sess, the motion may be used to obtain an tute for summary judgment. In Bradley v. motion cannot be error." Black's Law advance ruling on any ground regarding mat- Pittsburgh Board of Education, 913 F.2d ~ Dictionary, supra, at 1013-14. ters at triaL." Henry R. Sarpy, Handling 1064, 1069-70 (3d Cir. 1990), the court 2. Three uses of motions in Iimine are: Sympathy in Jury Trials, 455 PLI/Lit 37 cautioned that extensive motions in limine first, the motion may compIetely bar certain (Mai'.-Apr. 1993). do not allow the same procedural safe- evidence; second, it may limit the consider- For example, a motion in limine could guards provided by FRCP 56. ation of specific evidence to particular pur- "seek an advance ruling that certain evidence C. Authority poses or parties; third, it may prohibit is admissible." Robert J. Smith, A Practical 1. The authority in Utah state courts for particuIar witnesses from testifying at triaL. Guide to Motions in Limine.' How to Keep granting motions and orders in limine lies

10 Vol. 8 No.9 ii 7 within the courts' inherent powers. Support take appropriate action, with respect to . . . ment, or to get an advance ruling on evi- for this inherent power includes: advance rulings from the court on the admis- dence you propose to use. The motion a. "An appIication to the court for an sibility of evidence." Additionally, FRE should be brought as close to the com- order shall be by motion which, unIess 103(c) requires that "(iJn jury cases, pro- mencement of trial as possible, however, in made during a hearing or triaI, shall be ceedings shall be conducted, to the extent order to avoid premature disclosure of triaI made in writing, shall state with particular- practicable, so as to prevent inadmissible strategy." Robb M. Jones & Rhonda L. ity the grounds therefor, and shall set forth evidence from being suggested to the jury by NeiI, Motions in Limine and Other Trial the relief sought." Utah R. Civ. P. 7(b) (1). any means, such as making statements on Motions, 294 PLI/Pat 125 (May 21, 1990). b. "In any action, the court in its dis- offers of proof or asking questions in the 2. A motion in limine is available during cretion or upon motion of a party, may hearing of the jury." triaL. "(AJ motion in limine may aIso be direct the attorneys for the parties and any D. Form & Content presented in the form of an oral motion unrepresented parties to appear before it for 1. While there is no express statutory for- made just before jury selection or during a conference or conferences before triaI for mat for a motion in limine, Utah Rule of trial, but out of the presence of the jury." such purposes as: (1) expediting the dispo- Civil Procedure 7(b)(1) may require the Johnston & Higgins, supra, at 305. A sition of the action; (2) establishing early motion to be in writing, unless it is made at a motion in limine can be presented any time and continuing controI so that the case wil trial or hearing, to set forth with particularity that counsel has reason to believe that not be protracted for Iack of management; the grounds for the motion, and to identify opposing counseI may refer to or introduce (3) discouraging wastefuI pretrial activities; the relief sought. The motion should be spe- objectionable evidence. (4) improving the quality of trial through cific. If it is too broad or vague it may not be F. Consequences of Motions in Limine more thorough preparation; (5) faciIitating granted or if granted, it may not be effective 1. The ruling is interlocutory and may be the settIement of the case; and (6) consider- either because it unduIy restricts the other changed at any time during the proceeding other matters as may aid in the orderly party's presentation or because the objection- ings. In Nelson v. Peterson, 542 P.2d 1075, disposition of the case." Utah R. Civ. P. l6(a). able conduct does not explicitly vioIate the 1076-78 (Utah 1975), the trial court had c. "Preliminary questions concerning order. Johnston & Higgins, supra, at 309-10. granted plaintiff's motion in limine to the qualification of a person as a witness, exclude mention of ilegitimacy and weI- the existence of a priviIege, or the admissi- fare in a wrongful death action of a full- bility of evidence shall be determined by the term fetus. ¡d. During cross-examination court, subject to the provisions of "The judge may order a complete the defendant doctor referred to the ilegiti- Subdivision (b)." Utah R. Evid. 104(a). macy and weIfare whiIe explaining the d. "When the relevancy of evidence bar of specifed evidence. plaintiff's name change in his records. The depends upon the fulfillment of a condition Because, however, the order is trial court aItered its earlier ruling by allow- of fact, the court shall admit it upon, or sub- interlocutory, counsel wil need ing the testimony to stand stating that the ject to, the introduction of evidence suffi- to be prepared to defend the illegitimacy "might very well have bear- cient to support a finding of the fuIfilment ing" on the plaintiff's degree of anguish. ¡d. of the condition." Utah R. Evid. 104(b). order at triaL. Counsel should The Utah Supreme Court affirmed, reason- e. "All reI evant evidence is admissi- also be careful not to ing that the "jury was entitled to know all ble, except as otherwise provided by the open the door by alluding the circumstances if they were to fairly Constitution of the United States or the to the excluded matter." appraise the quantum of mentaI anguish." ¡d. . Constitution of the state of Utah, statute, or 2. A motion in Iimine couId be subject to by these rules, or by other ruIes applicable FRCP 11 sanctions if it is frivolous or not in courts of the state. Evidence which is not made in good faith. reIevant is not admissible." Utah R. Evid. 402. 3. The judge may order a compIete bar f. "Although reIevant, evidence may 2. It is advisable to file the motion not of specified evidence. Because, however, be excluded if its probative value is sub- only with a supporting memorandum of the order is interlocutory, counsel will need stantially outweighed by the danger of points and authorities but also with a pro- to be prepared to defend the order at triaL. unfair prejudice, confusion of the issues, posed order. 3 Witkin Evid., supra, at § Counsel should also be careful not to "open misleading the jury, or by considerations of 201 l(d). The protective order should explic- the door" by alluding to the excluded matter. undue delay, waste of time, or needless pre- itly prohibit counseI, parties, or witnesses 4. The judge may order a partial bar of sentation of cumulative evidence." Utah R. from conduct forbidden by the order. David specified evidence. Additionally, the judge Evid.403. Herr, Motion Practice § 18.5, at 494 (2nd ed. may limit the scope or purposes for which 2. In federaI court, support for the 1991). Additionally, the proposed order may the evidence can be used. For exampIe, in court's inherent authority for granting specifically reference possibIe sanctions for Matter of Estate of Justheim, 824 P.2d 432, motions or orders in limine can be found in violation. Smith, supra, at 23-SPG Brief 49. 437-38 (Utah App. 1991), in testimony Federal Rule of CiviI Procedure 16 and E. Timing about inter vivos gifts, the court prohibited FederaI Rules of Evidence, RuIe 103(c), 1. A motion in limine is available before direct discussion of undue influence, fiduciary 104(c), and 61 l(a). FRCP 16(c)(3) provides triaL. Bringing a motion before trial may heIp obIigations, or confidential relationships. that "at any conference under this rule con- to "foreclose opponent's use of damaging 5. The judge may reserve ruling on the sideration may be given, and the court may (and inadmissibIe) evidence in opening state- motion until the trial deveIops more fully.

November 1995 11 --

In Schmidt v. Intermountain Health Care, likelihood that a different result would have demonstrate that admission of this expert's Inc., 635 P.2d 99, 101-02 (Utah 1991) the been reached.'" Id. (citations omitted). For testimony prejudiced plaintiff's case. Id. court allowed evidence of prior medical example, in King v. Fereday, 739 P.2d 618, at 529. treatment where the court had reserved rul- 622 (Utah 1987), the court stated that any On the other hand, in Bilings v. Nielson, ing on the plaintiff's motion to exclude. refusal to exclude evidence for assessing 738 P.2d 1047,1048 (Utah App. 1987), the "However, if the court reserves its ruling damages was harmless and irrelevant court found that defendants had lost their on the order, it must then determine because the jury determined that defendant right to appeal an alleged erroneous exclu- whether it will allow any mention of the was not negligent. sion of evidence by not attempting to intro- subject matter during the voir dire process 2. Preserving Appeal duce evidence at trial after the judge had and the opening statement." Johnston & a. Currently, courts are divided over "specifically reserved ruIing" on its admis- Higgins, supra, at 312. whether a limine motion is sufficient to pre- sibility at the in limine hearing. Bilings 6. The judge many deny the motion and serve an appeaL. In some jurisdictions, failing may be distinguishable from Onyeabor in proposed order. If the motion is denied to object may act as a waiver of appeaL. that the trial court in Billngs "never ruled counsel should make the motion again at Collns v. Wayne Corp., 621 F.2d 777, 784 on the admissibility" of the excluded evi- triaI and object to the proffered evidence. (5th Cir. 1980). In other jurisdictions, a lim- dence. Billings, 738 P.2d at 1048. Whereas G. Consequences & Sanctions for Violation ine motion is adequate to preserve an objec- in Onyeabor, the court stated that the 1. Contempt. "First, the court may find tion for appeaL. Sheehy v. Southern Pacific '''matter is sufficiently raised if it is sub- an attorney who vioIates an in limine order in Trans. Co., 631 F.2d 649, 652-53 (9th Cir. mitted to the trial court, and the court is contempt." Johnston & Higgins, supra, at 314. 1980). Thus it is always advisable to renew afforded an opportunity to rule on the 2. Conective Jury Instructions. If the any objection at triaL. issue. '" Onyeabor, 787 P.2d at 528 (quot- prejudice is severe then corrective jury ing Hardy v. Hardy, 776 P.2d 917, 924 instructions may be insufficient. Alterna- (Utah App. 1989) (citations omitted)). tively, if the prejudice is not so severe then Additionally, the court may limit the seeking corrective jury instructions could "Corrective Jury Instructions. appeal to the specific grounds of the objec- draw even more attention to the objection- tion. See Meyers v. Salt Lake City Corp., able materiaL. If the prejudice is severe then 747 P.2d 1058,1059-61 (Utah App. 1987). 3. MistriaL. The court has broad discre- corrective jury instructions tion in granting or refusing to grant either a may be insuffcient. Alternatively, II. UTAH CASE REVIEW mistrial or a new triaL. A. Overview 4. New TriaL. if the prejudice i,~ not so There are 79 appellate decisions in Utah 5. Refer to Bar for Discipline. If the vio- severe then seeking corrective that expIicitly mention "limine" motions. lation is egregious enough, the court could jury instructions could draw Of those, 27 are civiI cases and 52 are crim- refer' counsel to the Bar for discipline for even more attention to the inaI cases. violating rules of professional conduct. B. Utah Examples objectionable materiaL." 6. AdditionaI Costs. "(E)xcess costs of 1. Prior Accidents. In Erickson v. litigation that occur because of a vioIation Wasatch Manor, Inc., 802 P.2d 1323, 1325- of an in Iimine order may be recovered." 26 (Utah App. 1990), the court allowed Johnston & Higgins, supra, at 314-15. defendant's motion in limine excluding evi- 7. Nothing. If, however, the court deter- b. In Utah, a motion in limine may be dence of prior falls, by plaintiff and others, mines that the vioIation was not prejudicial sufficient to preserve the objection for in a parking lot unless plaintiff could estab- then, in its discretion, it may afford no relief. appeaL. Onyeabor v. Pro Roofing, Inc., 787 lish that prior falls were in the same H. Appellate Review P.2d 525, 528 (Utah App. 1990). In depressed area. 1. Standards Onyeabor, defendant's expert was identified 2. Defendant's Negligence. In Reiser v. a. If the order reIates to a ruling of for triaI only tweIve days before triaL. Lohner, 641 P.2d 93, 96-97 (Utah 1982), law or interpretation of the rules of evi- Plaintiff's counsel was however, familiar the court affirmed the trial court's exclu- dence then the appellate court wil review with the expert's testimony because he had sion of evidence that the defendant doctor the order under a correction of error stan- previously planned on testifying, but then had previously failed to perform Rh sensi- dard. Utah Department of Transportation v. became ilL. When the expert's health tivity testing on the pIaintiff because it was 6200 South Assoc., 872 P.2d 462, 465 returned, defense counsel identified him as a irrelevant and prejudiciaL. (Utah App. 1994), cert. denied, 890 P.2d witness for triaL. "Defendants argue(d) that Similarly, in Kitchen v. Cal Gas Co., 1034 (Utah 1994). plaintiff failed to preserve the issue for 821 P.2d 458, 461 (Utah App. 1991), cert. b. Ordinarily, orders in limine will be appeal by failing to object at the time (the denied, 832 P.2d 476 (Utah 1992), the court reviewed under an abuse of discretion or expert) was called to the witness stand. prohibited testimony regarding the speed of reasonability standard. Id. "Even where Plaintiff's pretrial motion to exclude the tes- defendant's vehicle forty-five minutes enol' is found, reversal is appropriate only timony was however, adequate to preserve before the accident. in those cases where, after review of all of the issue. . . because the court had an oppor- 3. Plaintiff's Negligence. In Whitehead the evidence presented at trial, it appears tunity to rule on the admissibility." Id. The v. American Motors Sales Corp., 801 P.2d that 'absent the error, there is a substantial court held that the plaintiff had failed to 920,927-28 (Utah 1990), the court properly

12 Vol. 8 No.9 excluded evidence of plaintiff's non-use of triaI court was prepared to make a prima 9. Product Efficacy seatbelts in a rollover accident. The court facie finding of malice at the time it ruled. 10. FeIony Conviction noted that the legisIature, subsequent to this 9. Inappropriate Expert Testimony. In Hil 11. Misdemeanor action, had passed a statute disallowing evi- v. Dickerson, 839 P.2d 309,311 (Utah App. 12. Out of State Convictions dence of seatbelt non-use as constituting 1992), the court disallowed pIaintiff's expert 13. Settlement Negotiations contributory or comparative negligence. Id. on defendant's motion to exclude because 14. Subjective Belief 4. Consumption of AlcohoL. In Pearce v. pIaintiff had designated witness in an 15. Hearsay Wistisen, 701 P.2d 489,490-95 (Utah 1985), untimely fashion and in violation of the B. Limiting the Scope of Demonstrative the court reversed the triaI court's decision couii's instruction. See also, Radclife v. Evidence not to exclude evidence that plaintiff had Akhavan, 875 P.2d 608, 611 (Utah App. 1. Graphic Exhibits been drinking alcohol the night before he 1994) (denying untimely designation of 2. Day in the Life Films drowned because its effect was too prejudi- expert witness). C. Improper Expert Testimony cial where defendant failed to prove the Additionally, in Redevelopment Agency of 1. Improper Foundation reIevance of drinking the night before. Salt Lake City v. Tanner, 740 P.2d 1296, 2. Inappropriate Method 5. Post Occurrence Reactions. In Fisher 1303-04 (Utah 1987), the court excluded an 3. TimeIiness v. Trapp, 748 P.2d 204, 205-07 (Utah App. expert's opinion of property vaIue because D. Miscellaneous 1988) cert. denied, 765 P.2d 1278 (Utah he had not actually appraised the property. 1. Claims and Defenses 1988), the court affirmed the exclusion of 10. Hearsay. In Hansen v. Heath, 852 2. ProceduraI Matters evidence that defendant driver had initially P.2d 977,978-80 (Utah 1993), the triaI court fled the scene of the auto-pedestrian accident. properly denied plaintiff's motion to exclude IV. CONCLUSION 6. RemediaI Measures. In Meyers v. Salt the statement of a deceased driver made to If effectively used, motions in limine Lake City Corp., 747 P.2d 1058, 1059-61 his doctor because it qualified as a hearsay can be one of the most powerfuI tooIs in (Utah App. 1987), the court allowed results exception as a statement made for the pur- your Iitigation arsenaL. Motions in limine of an internal police investigation confirm- poses of medicaI diagnosis or treatment. can be used: to preclude prejudiciaI evi- ing pIaintiff's complaint of excessive force. dence before the jury hears it and refocuses The evidence was allowed because it was in III. COMMON APPLICATIONS on it when you object; to obtain advance a Ietter from the police deparment to the A. Evidence of: rulings allowing your evidence in at trial; to pIaintiff and because the defendant had 1. Remarriage limit the scope of your opponent's objec- opportunities to clarify the different stan- 2. Collateral Source tionable evidence; to educate the judge; to dards for internal police investigations and 3. Non-compensabIe Damages encourage settement; to foreclose claims civiI liabiIity, but faiIed to do so. 4. Prior Accidents and set up motions for summary judgment; Additionally, in Nay v. General Motors 5. Prior Negligence for any other matter your imagination Corp., 850 P.2d 1260, 1262 (Utah 1993), 6. Consumption of Alcohol allows. Indeed, Iitigation can often be won the court affrmed the trial court's ruIing on 7. Post Occurrence Reactions or Iost on these motions. a defense motion to exclude evidence of 8. Remedial Measures prior recall and redesign of the vehicle. AIso in Bridges v. Union Pac. R. Co, 26 Utah 2d 281, 488 P.2d 738, 739 (Utah 1971), the court precluded evidence about redesigned plans of a raiIroad crossing and intersection. In Barson v. E.R. Squibb & Sons, Inc., 682 P.2d 832, 837-38 (Utah 1984), however, the court allowed evidence of post- injury, DeIaIutin inserts for the limited purpose of strict Iiability consideration. 7. Product Efficacy. In Squibb, 682 P.2d at 839-40, the court allowed testimony about the effectiveness of DeIalutin, notwithstanding an order in Iimine, because defendant had "opened the door." 8. Defendant's Wealth. In Ong International (U.S.A) Inc. v. 11th Avenue Corp., 850 P.2d 447, 455-56 (Utah 1993), the court affirmed the triaI court's denial of defendant's motions in limine to exclude evidence of defendant's wealth until a prima facie finding of liability because the

November 1995 13 Jury Selection

By Gordon L. Roberts & Honorable Timothy R. Hanson

GORDON L. ROBERTS was named Utah HON. TIMOTHY R. HANSON was Trial Lawyer of the Year by the American appointed as a State District Court trial Board of Trial Advocates in 1991. His trial judge for the Third Judicial District in practice at Parsons Behle and Latimer I982. In addition to general trial duties, includes complex commercial torts, toxic waste ligation, RICO, labor, intellectual he has also served as the assigned tax property and major contract and tort litiga- judge for the Third District for cases tion. He served as trial counsel in connection involving state taxation matters. Prior to with various litigation matters arising out his appointment to the bench, Judge

of the death of Howard Hughes. He is a Hanson engaged in a civil litigation prac- Fellow in the American College of Trial tice, where his experience included con- Lawyers and a Fellow of the Trustees of the tract actions, products liability, personal American Bar Foundation. A past president of the Salt Lake County Bar Association, injury and death claims, professional he was also a charter member in the first malpractice cases and insurance cover- American Inn of Court ever organized. age questions.

Ied back to rectitude by judges who for some just verdict?" Notwithstandingence we generally how much have rever- for the reason view it as a failure on their part if they Juror No.6: "Yes." jury system, we must all admit to a certain have to disqualify a juror for cause. How many Lawyers may be left with only their pre- cynicism when jury panels so routinely and of you have witnessed colloquies Iike this: emptory challenges to weed out such_people. II so uniformly raise their hands and swear to Juror NO.6.' "Well your Honor I'd f' God AImighty that there is absolutely noth- have to admit that I don't think that the THE IMPORTANCE OF ing they have heard about the case during peopIe who were injured should sue JURY SELECTION voir dire or otherwise which would in any someone eIse for their injuries. Being There are serious people, who have way make then an unfit juror or which injured is just part of life and everyone given this matter a great deal of thought, would in any way prejudice them for or should learn to live with it." who have concluded that the selection of against either party to the controversy. Judge.' "Well, notwithstanding those the jury is not only the most important part Even those jurors who may initially feelings, do you feeI that you can be of a jury trial - it is verdict determinative. admit of some tiny prejudice are quickly fair and just in this case and render a Warren Platt spoke on this subject a couple

14 Vol. 8 No.9 of years ago and stated that in his judgment states, a notable exampIe is Texas, allow far- Among its virtues are the following: when the jury was picked the trial was over. reaching attorney conducted voir dire. There 1. It does allow the court and both coun- As trial lawyers we obviously don't wish to has been a strong push by some trial lawyers, seI to work together in preparing a believe that because, we as triaI Iawyers most notably Jackson Howard of Provo, who meaningful series of appropriate voir dire Iike to think that the things we do such as has mounted a substantial campaign on this questions; searching cross-examination and brilliant subject, to push for attorney conducted voir 2. The questionnaire is filled out confi- closing argument have some impact on how dire in Utah. However, most state courts dentially by each juror thereby permit- the triaI turns out. remain hesitant and the appellate courts in ting the utmost candor by the juror - WhiIe we do not yet fully accept Warren Utah have consistentIy held that the matter is presumably it wouId be easier for a juror Platt's thesis, it is worth noting that it may discretionary with the trial court.2 to admit some possibIe bias or prejudice indeed be supported by the famous on a confidential questionnaire than it University of Chicago study done regarding would to admit the same bias or preju- opening statements. And further, there is no dice in open court in front of the entire question that a substantial industry has not "The typical experience in Utah, venire, counseI, and the court personnel; been built up around the proposition that 3. The questionnaire can provide the the scientific and psychological study of in both state and federal courts, basis for individualized questioning of jurors pays off in a big way. i is that by and large voir dire the juror, in chambers with the court and We have had some experience with examination is conducted by the counseI but out of the presence of the these psychological studies - mock trials court. It has been our experience other jurors, which would allow a more and discussion groups. It is probabIy not probing questioning of that juror's worth spending a great deaI of time on it that most courts are generally biases, prejudices and attitudes, without here since it is such expensive heIp that it is receptive to voir dire suggestions the danger of possibly infecting the the rare case that can carry the financial made by counsel, particularly entire venire. burden. Nonetheless, there is a lot written We have personally seen this methodoI- about it, it is a growing area, and if you're if those suggestions are in ogy used quite effectively in a major prod- engaged in a substantiaI matter where the advance and in writing." uct liability case and understand that it has cost can be justified, it is worth exploring. been utilized in various other cases locally Briefly, our own experience has been that including one which received pubIicity these professional litigation assistance where the plaintiff's counseI was the groups can be of help to you but that you We do not advocate a whoIesale conver- Wilcox, Dewsnup & King firm. Such ques- shouId view them as a resource rather than sion of our system here to Iawyer conducted tionnaires can allow probing not only as to Ietting them run your case for you. voir dire. For one thing, we do not believe the specific parties or circumstances of the the Bar in generaI is competent to do it sim- case (which can usually be done relativeIy METHODOLOGY pIy because so few have had any experience well orally), but deal as well with touchier The typical experience in Utah, in both with it. We would encourage increased use issues particularly biases and prejudices the state and federal courts, is that by and large of attorney conducted voir dire under cir- jurors may have formed as a result of tort voir dire examination is conducted by the cumstances where all participants in the triaI reform propaganda or widespread publicity court. It has been our experience that most have advance knowIedge, the court can work of the case in question. courts are generally receptive to voir dire with counsel on the scope of permissible Some sampIe questions which might be suggestions made by counsel, particuIarly questioning, and care can be taken to avoid considered include the following: if those suggestions are in advance and in error or mistriaIs. If the voir dire is con- Question.' Have you read magazine or writing. This procedure is sanctioned ducted properly, there is much to be gained newspaper articles or other Iiterature although not dictated by Rule 47 of the Utah from it and little real risk. Attorneys and their suggesting that jury verdicts are exces- Rules of Civil Procedure which provides: clients would have an opportunity to more sive or unreasonabIe? "The court may permit the parties or personally evaluate the prospective jurors in Yes_No_ their attorneys to conduct the exami- order to form more cogent reasons for either If yes, describe the magazine or newspa- nation of prospective jurors or may challenges for cause or preemptory chaI- per and generally what the article or lit- itself conduct the examination. In the Ienges. Abuses can be managed by the erate stated: latter event, the court shall permit the courts. If a prospective juror bIurts out some- Question.' Have you heard anything on parties or their attorneys to supple- thing which might affect the remainder of the television or radio about a lawsuit crisis ment the examination by such further panel, it is probably better to hear it up front or excessive jury verdicts? inquiry as is materiaI and proper or rather than having those thoughts come out Yes_No_ shall itself submit to the prospective in deliberations for the first time. If yes describe what you saw and/or jurors such additional questions of Yet another approach, which has a great heard: the parties or their attorneys as is deal to recommend it, is the use of confiden- Question.' Do you have negative feelings material and proper." tiaI written juror questionnaires. This is a about lawyers who represent injured Most federal courts through the land follow practice that has been utilized in both state peopIe in negligence cases? this same methodology although many and federaI courts here and eIsewhere. Yes_No_

November 1995 15 ¡i I

If yes, please explain: for approximateIy $450 million. In short, could render a fair and true verdict); King v. Question: Do you feel that limits should there are a Iot of things happening which Fereday, 739 P.2d 618 (Utah 1987) (voir be pIaced on a person's right to recover may Iead various members of the public to dire concerning juror's stock interest in any compensation for another's negIigence? believe that our judicial system is simpIy not business and the nature of the business was Yes No_ functioning properly. In consequence, it is sufficient 0 reveal any connection a poten- If yes, please expIain: very important that attorneys be permitted to tial juror might have to the defendant's Question.' PIaintiffs in this case are probe this area through appropriate voir dire. insurer). suing for $1.2 millon. If you find for the There are a number of Utah cases which plaintiffs and if you find that plaintiffs address this issue. The citations include: CONCLUSION have suffered damages which justify an Barrett v. Peterson, 868 P.2d 96 (Utah App. There are a number of do's and don'ts award in that amount, would you have 1993) (where the trial court failed to ask in jury selection by plaintiffs! Always pick difficulty in awarding that amount? threshoId questions concerning jurors' the "littIe guy"; avoid businesswomen; pick Yes No_ potentiaI exposure to tort-reform and medical someone who has been injured; never pick If yes, please explain: negligence information, plaintiff's right to accountants, etc. From our experience, we The foregoing are by no means exhaus- exercise peremptory challenges was substan- question the value of such set rules and sug- tive nor is it guaranteed that a court wouId tially impaired); Evans By and Through gest instead reliance on individuaI judg- give them. Evans v. Doty, 824 P.2d 460 (Utah App. ment and client's intuition, which can be 1991), cert. denied, 836 P.2d 1383 (Utah very helpfuL. AREAS OF INQUIRY 1992) (although triaI court did not err in Through whatever methodoIogy, we ProbabIy the biggest concern in jury refusing to inquire into jurors' knowledge would advocate broader and more thorough selection at present is the tremendous voI- concerning specific 3-year-oId tort reform going voir dire together with a more ume of information being made public article, court did err in faiIing to question aggressive attitude by courts on challenges about the need for tort reform. Tort reform potentiaI jurors concerning their generaI for cause. is a major political agenda of the party knowledge about and attitudes toward med- IGary Moran, Brian Cutler & Anthony De Lisa, Attitudes presently in power in our Congress. News icaI negIigence and tort reform); Ostler v. Toward Tort Reform. Scientific Jury Selections and Juror releases bombard us with stories such as the Albina Transfer Co., Inc., 781 P.2d 445 Bias: Verdict Inclinations in Criminal and Civil Trials, 18 Law & PsychoL Rev. 309 (1994). "McDonald's Hot Coffee case" and the (Utah App. 1989), cert. denied, 795 P.2d 2James W. McElhaney, Getting the Most Out of Jui)' "0.1. Simpson case" - all showing that the 1138 (Utah 1990) (trial court sufficiently Selection, 79-Jan. A.B.A. J.78 (1993). Professor McElhaney judicial system has gone awry. Even in inquired into jurors' potential tort reform notes that lawyer conducted voir dire is disappearing in many states not so much because of abuse but because it wastes time Utah, which has been known for conserva- bias by asking if jurors wouId object to and can be incredibly boring if not handled properly. tive, even stoic, juries, a jury in TooeIe awarding amount of damages sought by County rendered a verdict against Texaco pIaintiff and whether jurors believed they

J~'"~di 1116 l1~VtM ~~ " St.~H~'~.l1Md7 q ~di

16 Vol. 8 No. 9 Demonstrative Evidence: Seeing May Not Be Believing But it Beats Not Seeing at All

By E. Scott Savage

I. INTRODUCTION inference or impression of the presenter of UnfortunateIy, most clients don't think the evidence (e.g., a witness). The jury sees, you're worth very much as a triaI Iawyer if hears, or touches the actuaI evidence. (I've you only win the cases you shouId win. never known a jury to smell or taste evi- You might even be better off losing cases dence but I suppose such is not beyond the you should win so that then you wouId at realm of imagination.) Examples of real least have a shot at becoming the managing evidence are site inspections and courtroom partner in a large law firm. Because most of demonstrations. Although somewhat Iess us aspire to be neither managing partners "real," I also include under this heading nor poorly regarded trial Iawyers, our quest photographs, films and video tapes since is to find a way to win cases we shouId lose, they function as options for site inspections or, at least, obtain better results than those and courtroom demonstrations. attainable by lesser trial lawyers. The second broad category of demon- Obviously, your ability to persuade is strative evidence is ilustrative evidence. directly related to your abiIity to communi- Diagrams, charts, summaries, and models cate and the most important aspect of com- fall into this category. Often overlooked in munication is clarity. The jury must this category is the use of an easel pad. understand clearly the facts upon which E. SCOTT SAVAGE, a Fellow in the Next to interrogation skil, this may be your you believe the case turns. To understand most effective courtroom tool. See discus- those facts, the jury must also have a suffi- American College of Trial Lawyers, has sion, infra, Section V. cient background to appreciate the salient tried to verdict over one hundred cases facts. Therefore, you must be an effective III. PHOTOGRAPHS, teacher before you can become an effective throughout the Western United States. He VIDEOTAPES, DEMONSTRATIONS persuader. AND SITE INSPECTIONS is a senior litigation partner of the law Clear, concise presentation of both the In deciding upon the use of "real" evi- background facts which the jury needs and firm of Van Cott, Bagley, Cornwall & dence, photographs shouId always be your the particular facts of the case also helps first consideration. You shouId consider McCarthy, where he has practiced since estabIish your credibiIity. The highest video tapes or films if you cannot ade- praise I have received from former jurors is 1972. His practice includes antitrust, con- quately present the necessary information when I've been told, "You really heIped us through the use of stil photographs. Still understand what we needed to know to tract litigation, natural resources, prod- photographs easiIy can be enlarged to two decide the case." Jurors appreciate Iawyers ucts liability and negligence cases. by three feet and even larger if necessary. A who appear to be helping them understand close, continuing reIationship with a good what happened. They expect Iess from professionaI photographer is essential in an lawyers and too often get it. you in applying such guidelines when you effective triaI practice. I often invoIve a The selection and use of demonstrative make decisions concerning the use of professional photographer immediately evidence usually is imperative to the jury's demonstrative exhibits. after an accident since the scene may understanding of the particular facts which change before triaI and investigators and support your view of the case. II. REAL VS. parties generally have neither the training Demonstrative evidence, of course, must be ILLUSTRATIVE EVIDENCE nor camera equipment necessary to obtain taiIored to each case and each courtroom. There are two categories of demonstrative photographs which can be effectively There are no fungibIe demonstrative evidence. The first is what Wigmore terms enIarged for triaL. exhibits. There are, however, certain gener- "real evidence" (or "autoptic profference" if Video tapes are generally more favor- alities which you shouId aIways consider you went to Harvard). Real evidence, as its able to plaintiffs than are stil photographs. and it is the purpose of this article to assist name implies, is not subject to any conscious Videotapes tend to ilustrate how quickly

November 1995 17 an event happened. Re-creating the Iast dramatic, but they also are very risky. Don't V. EASEL PADS thirty seconds before an accident occurred present this type of evidence unless it is Most importantly, don't ignore simple can take twenty minutes or more to present absolutely fooIproof and even then you must easel pads and magic markers. Their use through a witness by using still pho- ask yourseIf why this can't be covered with can be just as effective as beautifulIy drawn tographs taken at, for example, five second photographs, diagrams or videotapes. foam core exhibits. Practice using an easel intervals. On the other hand, that same time pad. You may'even want to draw or have frame wil seem to pass very quickly if one iv. ILLUSTRATIVE EXHIBITS someone eIse draw what you need on the plays a thirty second video tape to the jury. Diagrams, summaries and models are pad before the trial commences. The jury This aspect of video tapes, obviously, can very useful and it is hard to imagine trying a will assume you put whatever is on the pad be used to advantage if your point is to case without using this type of exhibit. during a break. This is especialIy true if you show how quickly something happened. Before seIecting ilustrative exhibits, you represent the defense. The jury will get the Video tapes also have the advantage or dis- must first know your courtroom. How large same benefit of the illustration without the advantage (depending upon which side of must the exhibits be for alI members of the message that it cost a lot to produce the the case you represent) of showing the size, jury to see them? Wil the witness have to exhibit. power, and even terror of an accident. This leave the stand to refer to the exhibit? Wil Moreover, easel pads can be used to is especially true with respect to computer- the judge readily permit this? Is there a place highlight testimony. Something written on ized reconstructions which "re-create" the where the jury, the judge and the witnesses the pad while a witness is testifying can be impact and motion of the actual accident. can all see the exhibits? How large must the referred to during summation. The pad can See Section VI infra. exhibit be to be seen from that pI ace? Is there also be used to refer the jury back to what a One limiting fact about video evidence an easel in the courtroom which wil hold prior witness knew or didn't know when is that most video cameras have very poor such an exhibit? How many teIevision sets examining a subsequent witness. sound quality. Indeed, they usualIy use wil be needed to show a video tape? Can this It, of course, is improper to have one microphones which equalize alI sounds to be done without turning the Iights down? witness comment upon what another wit- the same intensity. That is, soft sounds are ness said. However, it is proper and very automaticalIy boosted and Ioud sounds are effective to write down on an easel pad a automatically reduced so that all sounds key point made by one witness and then seem of equal loudness. This often makes later, for exampIe, when you frame a insignificant background sounds appear "!EJasel pads can be used "hypothetical" fact, flp back to that page to highlight testimony. Something load and even annoying. If sound is signif- on the pad so that the jury recalls this was I, icant to your case, you will need to use written on the pad while a prior testimony and not mere conjecture. much more sophisticated equipment than witness is test~fying can be It is equally effective if a witness con- that possessed by most video technicians. If referred to during summation. cedes he cannot remember a certain event sound is not significant, don't record with or date. You may, for example, list key points any sound. The pad can also be used to from a witness's testimony and then skip a Photographs and video tapes at night refer the jury back to what a prior space where the witness denies or cannot pose particular probIems. Cameras must be witness knew or didn't know when remember something you know will be pro- adjusted to recreate actual nighttime visual examining a subsequent witness." vided by a later witness. You can then refer conditions. Otherwise, the prints and tapes back to that page and physically fil in the wilI be too dark or too light. This wilI blank with the later witness's testimony. require extra effort to lay a proper founda- Chronologies are often a very effective tion. Generally, you can accomplish what- way to organize testimony. Reciting facts ever you need from daytime photographs Once you know the physical restraints in chronological order is the most common even if the event occurred at night. imposed by the courtroom, you shouId con- means of organizing your openings and Courtroom demonstrations and site sider how expensive the exhibits wil appear summations. Once again don't overlook the to be. Many defense counsel become too vie wings are much more risky than pho- use of an easel pad for this purpose. tographs. Site viewings by the jury in my enamored with the glitz of fancy, profession- experience generally favor plaintiffs in ally done exhibits. Keep in mind that money Vi. HIGH TECH EXHIBITS accident cases. They tend to cause jurors to you appear to have spent on exhibits can Many triaI lawyers recently have re-enact the accident in their own minds. send a subIiminal message that this is a sig- become quite enamored with computerized For both parties, site inspections aIso run nificant damage case. Defense counseI exhibits. I have not been one of those the risk of jurors viewing something you should try to use simple diagrams instead of lawyers, but perhaps that is simply because did not intend or anticipate the jury to see modeIs, and photographs instead of comput- I haven't had the right case to use them or focus upon when you requested the erized video reconstructions. PIaintiff's since they have come on the litigation scene. inspection. Defense counsel, in particuIar, counseI, if the potential of the damage case In general they involve television screens shouId always consider whether there is merits more expensive exhibits, should opt and computer programs which allow one to any other way to get the point across before for them forthe same reason. instantly display on the screen a particular even considering an on-site inspection. document, photograph or videotape. Courtroom demonstrations can be very These exhibits can be bar coded and

Vol. 8 No.9 18 - they allow the jury to first see the entire INTRODUCING page of a document or the entire scene of a photograph and then zoom in on a particular area or paricular words that the examiner wishes to highlight. This can be an obvious advantage in focusing the jury on EvictRitem Eviction Documents for Utah the significance of a particular exhibit. However, they are quite expensive to use and do not provide the flexibiIity often nec- It's 4:13 p.m.... Your secretary went home early... essary in triaL. Your client just called and needs an eviction... Obviously, this type of exhibit must be And you have a dinner appointment in an hour... extensively prepared in advance of trial and, unfortunateIy, what you anticipated The Shortened Summons, Complaint, would be very important may, during the Petition for a Shortened Summons, Possession Bond, Notice of Possession Bond, Order of Possession Bond and the course of the trial, Iose its significance in Statute must be delivered to court by end of day. favor of something you did not code into the computer. Impossible? The equipment for these exhibits aIso Not any more. poses probIems since few courtrooms are designed in a manner that makes their use f, easy. If at all possible you should attempt to have one very Iarge television screen that With EvictRite, you can prepare al of the documents in a matter of minutes. everyone can view at the same time rather By inputing the information provided by your client, the documents, than separate screens for the judge, the wit- delivered with Capsoft" document automation softare, will be generated ness, the jury and counseL. In addition to and ready for final printing in a fraction of the usual tie. teIevisions, there is also necessary computer equipment and various cords running The system provides the user with: around the courtroom interconnecting the -Five Eviction Notices -Six Complaints equipment. Projection type big screen tele- -Sumions and Petition for Shortened Sumions visions have off-angIe viewing problems, - Four Possession Bond Documents but several manufacturers are now making -Two Ex Pare Motions for an Order of Restitution -Three Order of Restitution Documents reguIar televisions in very large sizes which -And More eIiminates this concern. You may stil, however, have a problem in finding a For more information or to place an order call screen that is large enough for everyone to see what you wish to emphasize when (801)221-8875 or fax (80/)22/-2750 zooming in to particuIar pars of the exhibit. Spec/allntroductory Rate $ 189 An additional probIem is that most of us Available in either DOS or Windows version have become conditioned to falling asleep Reta Price $239 Introductory Rate valid unti Jan. 15, 1996 in front of a television set. Using different Another product from LegalRite, a division ofJeffs Software Development, Inc., P.O. Box 644, Provo, UT 84603 sized bIowups of documents or photographs OOCapsoft is a registered traemark of Capsofl Development Corp. may actualIy keep the jury's attention better than utilizing televised representations of these exhibits, once the novelty of the high tech presentation wears off. Computerized re-creations generally Help Light the Way... favor the plaintiff and can be very powerful For many of the milion-plus Americans who live with evidence. Defense counseI aImost always progressive neuromuscular diseases, tomorrow means increasin¡, disabilty and a shortened life span. But object to the admissibility of these for Iack thanks to-MDA research-which has yieláed more than two dozen major breakthroughs in less than a of foundation and prejudice. Since they are decade-their future looks brighter than ever. vuInerabIe to foundation objections and are Your clients can help light the way by remembering very expensive to produce, their use must MDA in their estate 2lanning. For information on gifts or bequests to MDA, contact David Schaeffer, be very carefully evaluated. airector ofl'lanned Giving. In summar, demonstrative evidence is onIy bounded by the limits of your creativ- LL~ Muscular Dystrophy Association Kelly Mahoney, National Goodwil Ambassador, ity. Find the most effective way to re-create 3300 East Sumise Drive and Jerry Lewis, National Chairman reality in the courtroom. Tucson, AZ 85718-3208 1-800-572-1717 People help MDA...because MDA helps people. FAX 602-529-5300

November 1995 19 -

Plaintiff's Opening Statement

By Daniel L. Berman

1. An opening statement is the first and afraid to ask for money. Justice is fine, but best opportunity for the Plaintiff to tell the you don't want to be cheap. Plaintiff's story - being on the offense is a 8. If you have some bad facts and tough great advantage, you get to set the agenda issues, deaI with them in your opening. It's and force the other side to respond. much better that the jury hear it ÍÌom you 2. Tell your story - clearly, simpIy, - hear your explanation - than hear it for and with conviction. Some preparation the first time from the other side. Your suggestions: credibiIity, and the credibility of your case, a. Chronological bullet points. are your stock and trade. b. Take one page and write out what 9. Shorter is better than longer. You the case is about. need to cover the story, not put the jury to c. Draft a non-lawyer and take 10-15 DANIEL L. BERMAN senior partner at sIeep. Just ask yourself how do you Iike Berman, Gaufin & Tomsic, has practiced minutes to tell the draftee your story. sitting through an hour lecture. The jury, law in Salt Lake City since 1962. A mem- 3. Do not argue - you don't have to generally, wil be interested. Don't turn ber of the Board of Directors of the Utah argue. The facts will be far more damaging them off. Transit Authority, he is a member of the and persuasive. American Law Institute and a former 10. Be yourself - be yourself. Don't 4. Tell the jury the legal basis for your assistant professor of law at the feel you have to do it the way someone eIse claim - not in detail- but the jury shouId University of Utah. His primary area of does. Everyone of us can tell a story, but have the basic idea, from your opening, of practice is complex federal and state liti- we don't have to tell the story in the same gation, including antitrust, securities and your right to relief as they hear the evi- way - be prepared, be sincere - give it a commercial banking. dence. The jury shouldn't have to wait until go. A Iawyer doing it for the first time, a the end to figure out what the case is all sole-practitioner, can be every bit as effective i about. 6. Cover the key facts - not every piece and every bit as much trouble as an estab- "I i 5. Give the jury the basic idea of your of evidence. Don't just regurgitate the story, Iished, seasoned, self-important veteran. right to relief. Do not try to give the jury craft the story to cover the criticaI and preju- 1 1. These points are not rules - there

instructions or explain every claim you dicia1 facts - a little well-grounded good are no ruIes. Every case, every story is dif- have - we all overplead our cases and it guys vs. bad guys never hurt a PIaintiff. Give ferent, but you are a lawyer. Your client has can sound like you aren't sure about what ¡ii the jury a credibIe basis to identify with your been wronged. The client has a story. The you're doing - one or two strong claims are story. opening statement is your opportunity to better than a smorgasbord of legal theories. 7. Cover damages - don't forget or be tell that story.

i 20 Vol. 8 No.9 I J .1 Defendant's Opening Statement

By Carman E. Kipp

i. IN GENERAL particularly in the more difficult times dur- A. Style - Be yourseIf. Use your own ing the presentation of everyone's evidence. personality, your own methodology of pre- B. You must communicate with the jury. sentation, your own words, expressions, Don't be too Iawyery, don't talk down, and general methods of communication. make them believe you will be fair with them. Don't overact, don't try to copy incompati- It is essential the jury thinks you respect ble presentation with which you are not them, honor the difficult task which they have comfortable. undertaken, and are trying to fairIy present B. "This is Show Business" - Juries the entire dispute to them so that they can do tend to pay better attention to, and rely their job. more on, presentations which appeal to them. e. Be affirmative - "accentuate the e. Juries relate to good style, presence, positive." Work hard on the good points of personaIity, and presentation and tend to your case and work hard on the bad points accord them better credence. of the plaintiff's case. Try to minimize the D. Adjust the approach and presentation weaker points. (As they say, if you have to to the case at hand and the personality of eat a little crow, eat while it's young). If the forum and jury. you devote too much time, attention and E. KISS (Keep it simple). Often too CARMAN E. KIPP past-president of the energy to your bad points, you simply help much detaiI, presentations which are too Utah State Bar, is senior partner in the the plaintiff to emphasize the plaintiff's lengthy, too much repetition or too much good points in that area. anything have a negative rather than a positive firm of Kipp & Christian where he prac- D. Don't just defend. Find the weak effect. Well organized, direct and persua- tices all types of civil litigation, with parts of plaintiff's case and let the plaintiff sive presentations are the most effective emphasis in insurance, business and com- worry about your attacks in these areas. Try F. Be organized and accurate. Have your mercial matters. He is a Fellow of the to find someway to let the plaintiff deal facts straight, Have them well in mind and American College of Trial Lawyers, past with some hard subjects and hard evidence written down in some fashion that wil president of the American Inn of Courts so that you minimize the potential of a jury refresh your memory. Juries tend to have II, former director of the Utah State Bar envisioning the defense as being negative strong negative reactions to Iawyers who rather than positive. and a charter member of the Utah are caught in erroneous statements, errors E. Don't be too cute or funny. The jury or claims which prove to be incorrect or not Chapter of the American Board of Trial thinks this is serious business and wants supported by the facts Advocates. He was named Utah State Bar you to be serious about it. Be professional, G. Style? (Outline or script). This docu- Lawyer of the Year in 1987. be restrained unless there is some very sig- ment is my format sort of a "shopping list." nificant reason to be otherwise. Show your Others are happier with written narratives. high regard for the court and jury and for In either or any case, keep it alive and don't In the past, some defendants have thought it the system in general. just read from a bunch of pages to the judge was tactically advantageous to withhold mak- F. Keep case moving and keep jury or jury. ing the defendant's statement until the comple- interested. Juries are easily bored and H. Show and tell (clear with judge if any tion of the pIaintiff's case in chief. I think this is unfortunately, many lawyers are more than questions). Use graphic depictions, illustra- dead wrong. You need a jUlY to be able to con- tedious. Not only do you Iose the jury's tions, exhibits, subject to clearing this with sider your theory of the case when heaiing the interest, but they forget things that you the court so that you won't get into a prob- evidence fro the very beginning. want them to remember. lem of showing a jury an exhibit which is G. Be professionaL. You can legitimately not later received. Visible impact coupled II. OPENING STATEMENT win the jury's respect. with your vocal presentation are better IS CORNERSTONE H. Don't get mad. Do it right and like a remembered and have a larger impact on OF DEFENDANT'S CASE good lawyer. (As suggested in some of the the jury. A. Jury's first impression of you, your sections above.) i. Statement at start of case and after client, and your cause. This is crucial and plaintiff's statement with very rare exceptions. Iasting. A good impression will be helpful

November /995 21 III. EXPLAIN TRIAL PROCEDURE 2. Not a place for sympathy or emotion. items which are contrary to the defendant's AND FORMAT TO JURY. 3. Fair play, diligent consideration of claim in favor of the pIaintiff's claim, but TELL THEM "HOW IT GOES" the issues, and your honest finding of the they are less believabIe and don't fit into BEGINNING TO END facts you believe wil result in a verdict the total picture, thus a defendant's verdict A. Explain plaintiff gets first and last that does justice. should result). because plaintiff has burden of proof, but 4. The jury system is the very foundation D. The case is in two parts: you wil try to be complete, fair, and to of our system of justice in such disputes. (1) Liability (Fault); You don't meet all important points and issues. After want a jury to think that you are tac- the plaintiff has toId the jury what good IV. TELL THE JURY WHAT tically making any concessions about guys their clients are and what bad guys THE CASE IS ALL ABOUT liabiIity by presenting evidence in the your clients are and how you are the cuI- This is your chance to tell the jury what damage area of the dispute. You need prits, maIefactors and vilains, you need to you claim for your client in the case. You to explain that the system requires try to counteract this early headset by need to tell a story that is organized, under- this even though you are confident telling the jury that just because the pIain- standabIe, believable and persuasive. It is and you beIieve they will be confi- tiff claims this, it is not true, that in fact essentiaI that you achieve this goal before the dent that the defendant is not liable or "any damn fool with a filing fee can file plaintiff starts putting on its evidence so that responsible and that the plaintiff suit," and that you are entitled to their fair the evidence can be viewed fairly from both should not receive any award, but and just considerations, just as is the plain- sides u can gain whatever benefit there may you also question the plaintiff's dam- tiff. The mere fact that a claim is made is be from the plaintiff's evidence. age claims for whatever reasons you absolutely no proof that your client did any- A. Make sure you are prepared, accurate have, cite the evidence and your the- thing wrong or owes any damages. and minimize surprises. Your believabiIity ory of the case in both liability and B. Plaintiff may call witnesses that and persuasiveness are enhanced by meeting damage aspects. would ordinariIy be defendant witnesses these standards and diminished by mistakes, (2) Damages. See above. You can and offer exhibits that would ordinarily be oversights, surprises or other glitches in the then further amplify the damage issue defendant exhibits. presentation of your case and in the accuracy of the case. Again, carefully pointing Explain defendant gets benefit of all evi- of your various presentations to the jury out that this is not any kind of a con- dence no matter who puts it on. including statements and arguments as cession that you think the plaintiff e. "The Way It Works" (A littIe addi- related to the jury. If there are disputes, point has anything coming. tional expIanation of they system, the out the dispute and tell why the facts sup- 1. While defendant is required by the process of how a case is tried, who has what porting your side of the dispute are the more system to try both liability and damages role and hopefully how justice is served by persuasive and should be believed. in the same proceeding, this does not the combination of all of these things, helps suggest that the defendant admits liabiI- to have the jury function in a more realistic, ity or concedes that pIaintiff is entitled professional and objective fashion rather to any damages. than emotionally. It also should create "As the Dean many, many years E. "Who Can Sue" some good impression for you with the jury As the Dean many, many years ago in that you are helping them to do their job. ago when I was in law school when I was in law school said, "Any damn 1. Jury finds facts. said, 'Any damn fool with a fool with a filing fee can sue." The fact that 2. Court tells Iaw. filing fee can sue.''' the pIaintiff has sued is absoIuteIy no proof 3. Lawyers present the case to be that the plaintiff has any right to make a decided under the law applied by the claim or that plaintiff has any damages as a court with the decision to be rendered result of the alleged wrongdoing. The based on the law and the facts decided B. The ruIe of the seven P's. (PRIOR pIaintiff, as mentioned eIsewhere, is enti- by the jury. POSITIVE PLANNING PREVENTS PISS tled to equal consideration, fair treatment (Lawyer talk is not evidence.) POOR PERFORMANCE). See above. and the benefit of the law and facts even D. Be aware of the serious responsibility e. Use jigsaw puzzle example. (More though there may be some emotional or of being a juror. There is always the prob- pieces than you can fit into the finaI picture, sympathetic bias in favor of the plaintiff. lem of emotions in favor of the plaintiff and you have to decide which pieces fit to com- Who is the plaintiff and who is the defen- against the defendant. It is essential that at pose the correct final picture which is your dant is not a consideration in determining every opportunity from the very beginning whether there is a claim or not, and if there you explain that all parties are entitled to verdict. Your description of the picture that the pieces should make up when the are is a claim, what it may be worth, if anything. equal justice under the law, that sympathy assembled is like the picture on top of the or emotion has no pIace in the jury's delib- V. DESCRIBE THE CLAIMS box which contains the assorted jigsaw puz- i erations or decision, that you are confident OF THE PARTIES AND zle pieces, and if the correct pieces are I that they wil fulfil this difficult duty and THE BURDEN OF PROOF assembled, the picture which results wil be a meet this high standard which is essential to This again deals with potentiaI that a verdict in favor of the defendant. The pieces our system of justice. jury may start out with the notion that :!l 1. Be true to your oath as a juror. which don't fit are the disputed evidence because the plaintiff has made a claim, the

Vol. 8 No.9 I: 22

SilL plaintiff probably does have a benefit of all annoyance or other negative reactions to the evidence no matter which party presents various things which the proceedings them- CORPORATION KITS it and that if plaintiff does not met the bur- selves may require you to do. FOR den, that is to say, if the evidence is evenIy A. Explain possibIe motions and lawyer balanced or less, they cannot find for the court conferences and why they must take UTAH COMPLET OUfIT plaintiff on the issue to which that evidence place in the jury's absence. is directed. Don't get over wordy. Don't get B. The opening statement is a set of $52.95 Pre-prited By-Laws. miutes & resolutions, prited stock tedious in this description. Some suggested architectural drawings. It is a road map for certifcates & full page stubs, colporate seal w/pouch, binder & eIements are as follows: the jury to hear, assemble, and evaluate the slipcase, index tabs & ta form for E1N & S Colporation. A. Stick with the main claims and issues. evidence and complete the proper structure Complete kit wlo pre-prited By-Laws & miutes. 50 slts bond paper. B. Summarize the evidence. Emphasize or arive at th correct destination, which is $49.95 $4.00 additional S &Hper kit (uS Ground). that which supports the claims of the the verdict. Next day delivery available on request. defendant. C. You wil hear me remind you of this Kit wlo seal $4.95 plus S & H (This shouId probabIy take about two- opening statement in my closing argument thirds of your time, depending on the .type and tell you why the evidence justifies the of case.) result which the defendant thinks is a cor- C. Identify witnesses and exhibits, but rect result. don't beIabor the details. (Don't get tedious D. We wil try to fully and fairly present or overly taIkative.) the case and to submit a final argument to you D. Discuss comparative fault or other which wil be helpful in your deIiberations. issues as they may apply. E. Include description of questions FOOTNOTE: which may be submitted to the jury on both Finish on a high note. Once again, I do parties and non-parties. think that this is a fairly large measure F. Damages: Duty of plaintiff to mitigate "allow business." It is not to detract from OTHER PRODUCTS as well as to prove by a preponderance of the Iegitimacy of the judicial process, but it . NON-PROFIT OUTIT $59.95 the evidence. is to say that jurors are not lawyers or . LTD. LIABILITY CO. OUTIT $59.95 judges, are new in the courtroom and need . LTD. PARTNRSHI OUTIT $59.95 VI. JURY DUTY IS A "HARD JOB." to be dealt with having that in mind. The . FAMY LTD. PART. OUTIT $59.95 This again deaIs with the probIem of Iast impression is the one that is best . SEAL WIPOUCH (CORP., NOTARY) $25.00 bias, sympathy, prejudice or any predispo- remembered and may have the most impact . STOCK CERTS & STUS (20) $25.00 sition in favor of the plaintiff because the so as they say "aIways Ieave them laugh- plaintiff has made the claim. You need to ing." Finish on a high not with a ring of keep reminding the jury that they have a confidence, with a similarly positive NEW!!! sworn duty to uphold our system of justice, demeanor and attitude and thank for their EXHIT INEXES & CLOSING SETS WE STOCK A LAGE INNTORY to follow the instructions from the court performing this service. OF EXHIT INEXES about the law, and to make fair, realistic, (ALPHAETICAL & NURICAL), credible, objective findings of fact regard- References: C. Ogletree, The Defense Theory ofthe Case.' "Getting to Not CLOSING SETS (ALHAETICAL & less of whether they like those findings . . ., The Defender 8 (April, 1988) (pp. 246-248 of 1995 Utah NURICAL), BLA WRTABLE from their personaI vantage point or not. State Bar Annual Meeting Booklet) TABS & SPECIALTY INEXES, ALL C. Ogletree, The Theory of the Case: Opening Statements (pp. FOR QUICK SHIMENT. CALL FOR A. Jurors must use common sense and 249-323 of 1995 Utah State Bar Annual Meeting Booklet). PRICING INO. MI FOR QUANTITY follow the court's instruction. The verdict D. Scofield, Trial Handbook for Utah Lawyers (1994), cannot be affected by sympathies, emo- Chapter 6, pp. 109-115. DISCOUNTS. tions, or personal bias. P. Bergman, Trial Advocacy in a Nutshell, Second Edition B. You are sure jurors wil carry out (1989), Chapter 6, pp. 285-297. ORDER TOLL FREE! J. Jeans, Trial Advocacy (1975), Chapter 8, pp. 197-210. PHONE 1-800-874-6570 their sworn duty. M. Bell, Ready for the Plaintif (1956) pp. 3-11. FAX 1-800-874-6568 L. Lake, How to Win Lawsuits Before Juries (1954), Chapter ORDERS IN BY 2 PM MT SHIPPED SAME DAY VII. WINDUP COMMENTS 7, pp. 113-130. WE WILL BILL YOU WITH YOUR ORDER. I try to avoid being argumentative here SATISFACTION GUARANTEED. CORPORATION OUfITS REQUIRE TIE FOLLOWIG to the greatest extent possibIe. I think you INFORMATION: Exact name of the corporation, state & year of incorporation, tota are better by being practicaI, organized, and shares of stock authorid with par value (or no par), preferd shares, complete or wlo By-Laws. giving a presentable summar that wil NO CHGE FOR STANAR CLUSES wr KI PURCHE. keep the jury's interest and that wil help SPEC CLAUSES AN MUTlLE CLES OF STOCK EX CHGE. them to have a snapshot of your side of the CORP-KIT NORTHWEST, INC. case in mind. It also is heIpfuI to explain 413 E. SECOND SOUTH some sideline events which may occur BRIGHAM CITY, UT 84302 which the jury may find distracting and to SERVIG TH NORTHWEST avoid the potential for a jury having some

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By Stephen B. Nebeker

INTRODUCTION speculate on obtaining a favorabIe answer At triaI, counsel will confront testimony to an improper question and then object under oath and writings offered to prove the after the answer proves unfavorable. existence or non-existence of a disputed Counsel is not expected, however, to object fact. Utah R. Evid. 401, 402. to a question before it is answered if it is not Under our adversarial system it is each apparent untiI the answer that the evidence party's obligation to object to improper evi- is inadmissibIe. On hearing the answer, dence. To challenge inadmissible evidence counseI must immediately move to strike there must appear of record either: the evidence. (However, in State v. · an objection timeIy made on the spe- Velasquez, 672 P.2d 1254, the court found cific ground; a motion to strike is not an adequate substi- . a motion to strike; tute for an objection.) . an offer of proof. Utah R. Evid. 103(2). The rules for objecting may create the Absent such challenge the error in impression that objecting is something you admission of such evidence is waived. do only at triaL. However, even before trial Utah R. Evid. 103. Waiver may occur by you may object to evidence through a failure to object; an untimeIy objection; or motion in limine. Objections outside the an objection that fails to state a specific and STEPHEN B. NEBEKER, named Utah presence of the jury before trial shouId be proper ground. carefully considered. If you must object at State Bar Lawyer of the Year in 1986 and Of all the things you do to get ready for trial, only do so if it is worth it. When Utah State Bar Trial Lawyer of the Year trial, your efforts to shape the case by offer- objecting at triaI, be polite, since you are ing and objecting to evidence are among in 1994, has been a trial lawyer with the interrupting when someone eIse is speakng. the most important. This article is a quick law firm of Ray, Quinney and Nebeker for Do not take the objectionabIe questions or reference source for objections and motions 37 years, specializing in insurance answer personally. If jurors can see that challenging admissibility. There are some defense, products liabilty and insurance you have a good reason for objecting it preliminary comments about foundations coverage matters. He is a member of the minimizes any lessening of your credibilty. and objections generally, and sampIe offers American College of Trial Lawyers, the Occasionally, in the objections set forth and objections follow. The types of evi- below, it is suggested that counseI first American Board of Trial Advocates, the dence and objections are listed in alphabet- approach the bench before making an ical order. The code references are to Utah International Association of Insurance objection. This is particuIarly true of objec- Rules of Evidence. Defense Counsel and the Federation of tions seeking to exclude evidence where the Insurance CounseL. jury might draw significant inferences from MAKING OBJECTIONS the making of the objection. There are many reasons for making objections: to exclude improper evidence; received without a timeIy objection is that OBJECTIONS TO THE FORM to make a record for appeal; to protect the error is waived and may not be used as a OF THE QUESTION one's witness from harassment or embar- basis for a new trial or an appeaL. Utah R. Argumentative t rassment; to expose the opposing party's Evid. 103; Board of County Commissioners Objection, Your Honor. The question is unfair tactics; to prevent confusion of the v. Ferrebee, 844 P.2d 308 (Utah 1992). argumentative. jury; and to streamline the interrogation. When counseI has decided to object, make This objection is avaiIabIe when the Utah R. Evid. 403. sure to state the specific ground for the question does not elicit information, calls Good reasons for not objecting are: objection. Utah R. Evid. 103. Additionally, for an argumentative answer or asks the Danger of alienating the trier of fact; dan- objection to inadmissible evidence must be witness to agree to inferences drawn by the ger of highlighting harmful evidence; made at the earliest opportunity. This means lawyer. An answer may also be objection- where the harm threatened by the evidence at the time it is offered in evidence. State v. able as argumentative. (Use a motion to is negligible; and where reversal on appeal Schreuder, 726 P.2d 1215 (Utah 1986); strike such an answer.) Undue harassment is unlikely. Note: The consequence of Szarak v. Sandoval, 636 P.2d 1082, 1084 or embarrassment of a witness may also be allowing inadmissibIe evidence to be (Utah 1981). Opposing counsel may not objectionabIe as argumentative.

November 1995 25 r ii

Asked and Answered Compound examination of the witness. Objection, Your Honor. The witness has Objection, Your Honor. The question is General already answered that question. compound. (Optional- I have no objection to Objection, Your Honor. The question is This objection is availabIe where a ques- having the question rephrased, Your Honor). too general. tion is repeated after having been previ- This objection is availabIe if there are two If it cannot be determined from the ques- ously asked. (Note: Distinguish from questions conjoined in one question with the tion what specific admissible testimony. is objection as "cumulative" which applies disjunctive "or" or the conjunctive "and". being sought, the question is too general. where the proposed evidence merely adds Cross Examination Questions which are too general normally to other simiIar evidence on a point.) Objection, Your Honor. This question are also objectionable as vague and Assumes Facts in DisputelNot in Evidence exceeds the scope of direct examination. ambiguous or as callng for narration. Objection, Your Honor. The question Note: Courts generally permit wide Iati- Harassment assumes facts (in dispute/not in evidence j. I tude on cross-examination, however, some Objection, Your Honor. The question is ask that the jury be instructed that statements Iimit cross-examination strctly to matters unduly harassing. of counsel are (in dispute/not in evidence j. brought out on direct. The modern view This objection is availabIe if the question Ths objection is avaiable when a question aIIows cross-examination as to any matters is insulting to or constitutes undue harass- either 1) asserts or assumes a fact in dispute that have a IogicaI tendency to rebut an unfa- ment or embarassment to the witness. has been proved or 2) asserts or assumes a vorable inference which might be drawn (Note: Questions on cross-examination are fact for which no evidence has been intro- from the direct examination - any matter often harassing and non-objectionable. The duced. The question may also be objection- relevant to the subject matter of the direct. question must be unduIy harassing.) able as "Ieading". (Note: Be cautious with Very broad latitude is given where a witness Incompetent, Irrelevant, Immaterial is questions prefaced with "Did you know. . ."). is a pary, an expert, or a witness against Not Suffcient Complex defendant in a criminal case. Such an objection fails to meet the Objection, Your Honor. The question is "Opening the door": The fact that no required specificity. too complex for a witness to understand. objection was made on direct examination to Lack of Foundation is Not Suffcient This objection wil more likely be avail- inadmissible evidence may give the cross- Ths objection is too general to identify the abIe if the witness is very young, very old, examiner the right to cross-examine regard- specific reason the foundation is inadequate. or handicapped. ing matters within the scope of direct State v. McCarlell, 652 P.2d 942 (Uta 1982).

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26 Vol. r!

Leading This objection is avaiIable when a lawyer Best Evidence Rule Objection, Your Honor. The question is makes a statement to a witness that is not a Objection, Your Honor. This is not the leading. question or is prejudicial to the party. best evidence of the contents of . A question is leading if it suggests the Preliminary Fact Determinations (describe the writing, e.g., the lease). answer that the examning party desires Where there is a dispute about admissibil- See § 78-25-16, U.CA. (1953). from the witness. Leading questions are ity of particular evidence which depends Response: Your Honor, an original is objectionable on direct or redirect examina- upon a determination of some factuaI issue not required, and other evidence of a writ- tion, except they are allowed: regarding the prelimnar facts, the court may ing/recording/photograph is admissible if' . to establish preliminary matters; hoId a separate hearing out of the jury's pres- . The original has been lost or destroyed . to refresh the witness' recollection; ence to determine the admissibility of the without fraudulent intent by the party offer- · to question expert witnesses; proffered evidence. Utah R. Evid. 103 (c). ing the copy (Utah R. Evid. 1003); . to question hostile witnesses; Speculation . The original is not reasonably procur- . to question witnesses who change their Objection, Your Honor. The question able (Utah R. Evid. 1004); stories; and calls for speculation by the witness. . The original is under control of an · to identify exhibits. A lay witness is allowed to state his opin- adverse party and wasn't produced after Leading questions are proper on cross or ion onIy about a matter he has personally suitable notice (Utah R. Evid. 1004); recross-examination, except where the wit- perceived and onIy if it is helpfuI to a clear . The instrument is not closely related to ness is biased in favor of the cross-examner. understanding of his testimony. Utah R. a controllng issue (Utah R. Evid. 1004(4)); Misquoting the Witness Evid. 602. A properly qualified expert wit- . The original instrument is voluminous Objection, Your Honor. Counsel is mis- ness may state an opinion within the fieId of and the evidence concerns only "the gen- stating/misquoting the witness. his expertise even if he has no personal eral result of the whole" (Utah R. Evid. 1006). Misquoting generally occurs in a prefatory knowIedge of the facts. Utah R. Evid. 703, Competency statement before a question is asked. Often 705. However, if the data on which an expert Objection, Your Honor. This person is a subsequent question wil also be objection- bases his opinon included many varing or incompetent to be a witness because he can- able as "argumentative" and/or "ireIevant". uncertain factors that he is required to guess, not express himself so as to be understood. Motions to Strike surmise or conjecture about that data, the Objection, Your Honor. This person is An expert may not be allowed to answer expert's opinion is specuIative. incompetent to be a witness because he a hypotheticaI question that incorporates Vague and AmbiguouslUnintellgible cannot understand his duty to tell the truth. assumptions not presently in evidence, sub- Objection, Your Honor. The question is Experiments ject to a motion to strke. ambiguous in that (state reason) or, Objec- Objection, Your Honor. The experiment Narration tion Your Honor. The question is unintellgible. counsel wishes to present before the jury is Objection, Your Honor. The question not admissible because it was not conducted calls for a narrative answer. PLAIN ERROR under conditions substantially similar to those This objection is available when the If a triaI court's action constitutes plain existing at the time and place of the accident. question invites a witness to narate a series error affecting substantiaI rights of a party, Hearsay of occurrences. (A judge may alIow a wit- an appellate court may consider an issue of Objection, Your Honor. The question ness to give a narrative answer.) evidence not brought to the attention of the calls for inadmissible hearsay. Non-Responsive trial court on the ground the judge shouId Response: Your Honor, this (describe Objection, Your Honor. The witness' have acted sua sponte. Utah R. Evid. 103(d). evidence) is not hearsay, because (state why answer is non-responsive. !"Sustained"). I evidence is not hearsay - e.g., it is not offered move the court to strike the answer and I PRELIMINARY QUESTION OF FACT to prove the truth of the matter asserted). request the court to instruct the jury to dis- Preliminar questions concerning qualif- or regard the witness' answer. cation to be a witness, priviIege, or admissi- Your Honor, I am prepared to present This objection is availabIe when the bility of evidence are to be determned by the evidence to establish that (identif testi- answer is non-responsive, or responsive but court. Utah R. Evid. 104(a)(b). mony or exhibit) is admissible under the the witness adds non-responsive matter, or hearsay rule because (specif facts estab- the witness voIunteers testimony when no SUBSTANTIVE OBJECTIONS lishing foundation). These facts are not in ?' question is pending. Authentication dispute and in the interest of saving every- Offer of Proof Objection, Your Honor. A suffcientfoun- one's time, I think a stipulation would be Made out of the jury's presence - the dation has not been laid showing this exhibit appropriate. (Turning to opposing counsel) pary offering evidence may make an offer as authentic. Counsel, wil you stipulate that (specif There must be a showing that a writing of proof to explain its substance and rele- facts that wil establish foundation). vance. Utah R. Evid. 103(2); Bradford v. was made or signed by its purported maker or Alvey & Sons, 621 P.2d 1240 (Utah 1980). and suffcient evidence that it is the writing Your Honor, please allow me to lay the that the proponent claims it to be. Utah R. Prejudicial Comment foundation to permit the introduction of this Objection, Your Honor. There is no Evid. Article ix, X. A writing includes Iet- evidence under the (state applicable excep- question pending,' or, Objection, Your ters, words, pictures, sounds, symbols, or tion) to the hearsay rule. Honor. The comment is prejudiciaL. combinations ofthem. Hearsay evidence is a statement made

November 1995 27 other than by a witness while testifying at A statement is admissible if it describes as to the cause of death, are admissibIe when the hearing and offered to prove the truth of an act, condition or event perceived by the the record is made in a jurisdiction in which the matter asserted. Utah R. Evid. 801. declarant and was made while declarant was such conclusions are among the required Hearsay Exceptions - under the stress of the excitement caused by data to be inserted. Declarant Unavailable that perception. Utah R. Evid. 803(2). Public records are self-authenticating. The following hearsay exceptions Hearsay Exceptions - Even Though Therefore, it is not necessary to lay a foun- require the declarant be "unavailable as a Declarant is Available as a Witness dation regarding identity and mode of witness," Utah R. Evid. 804, which covers . Business Records preparation. declarants who are privileged, disqualified, Objection, Your Honor. The exhibit has . State of Mind dead, il, or absent. Most notable excep- not been properly authenticated. Objection, Your Honor. That question tions requiring unavailability are: Objection, Your Honor. The exhibit is calls for hearsay. · Declaration against interest; hearsay as it constitutes an out of court state- Response: Your Honor, this evidence fits · Dying declaration; ment offered to prove the truth of the matter under the Utah R. Evid. 803(3) exception to . Statement of personaI or famiIy history; stated and no exception to the hearsay rule the hearsay rule in that it constitutes a . Former testimony. applies. statement of the declarant's then existing The following are severaI commonIy Response: Your Honor, these records meet state of mind, emotion, or physical sensation appIicabIe hearsay exceptions: the business records exception under Utah R. and it is offered to prove the declarant's . Declaration Against Interest Evid. 803(6). They have met the foundational state of mind, emotion, or physical sensa- Under Utah R. Evid. 804(b)(3), a state- requirement of this exception because: tion as an issue in the case (or it is relevant ment by unavailable declarant who had suf- · Made in the regular course of the to prove or explain acts of the declarant in ficient knowledge of the subject is business,' conformity with such state of m.ind, emo- admissible if a reasonable person would not · Made at or near the time of the event,' tion, or physical sensation). have made the statement without believing · A qualifed witness wil testif to its Rejoinder: Your Honor, that exception it to be true (statements against declarant's identity and mode of preparation,' does not apply because this is a statement pecuniary or proprietary interest, subjected · The informtion sources and preparation of memory or belief offered to prove the him to civil/criminal liability, rendered a method and time indicate trustworthiness. fact remembered or believed. clai invalid, subjected declarant to disgrace). Utah R. Evid. 805 provides: Response: Your Honor, it is not a statement · Former Testimony Hearsay included within hearsay is not of the declarant's existing memory or belief Under Utah R. Evid. 804(b)(1) a state- excluded under the hearsay rule if each part concerning a past event but rather a statement ment by unavailable declarant is not of the combined statements conforms with an of declarant's then existing state of mind, excluded by Hearsay Rule if: exception to the hearsay ruIe provided in emotion, sensation, or physical sensation. Testimony given as a witness at another these ruIes. Rejoinder: Then, Your Honor, I move the hearing of the same or a different proceed- HospitaI records are business records. court to instruct the jury that this testimony ing, or in a deposition taken in compliance Police Reports: can be considered only as it reflects on the with Iaw in the course of the same or The requirement of personaI knowIedge state of mind f etc. J of the declarant, and that another proceeding, if the party against as a basis of a record is the chief barrier to the it cannot be considered in any way to prove whom the testimony is now offered, or, in a introduction of a poIice report of an accident. a fact supposedly remembered or believed. civil action or proceeding, a predecessor in The report is a record of an act, condition or Judicial Notice interest, had an opportunity and simiIar event but is often made by an officer who did Objection, Your Honor. The court can- motive to develop the testimony by direct, not see the accident and includes both not take judicial notice of the fact as cross, or redirect examination. hearsay statements of others and opinions of requested by counsel because under Utah Hearsay Exceptions - Availabilty the officer. If so, it is inadmissible. R. Evid. 201 a judicially noticed fact cannot of Declarant Immaterial However, officers who prepared a police "reasonably be the subject of dispute" in . Past Recollection Recorded report, if called as witnesses, are properly that it is either 1) common knowledge A witness' prior out of court statement is allowed to use the report to refresh their rec- within the territorial jurisdiction of the admissible if: ollections on all matters of which they had court, or 2) is capable of immediate and . he has insufficient recollection to tes- knowIedge and as to which the report would accurate determination by resort to sources tify fully; have been admissible. of reasonably indisputable accuracy. The · prior statement in writing; . VitaI Statistics point raised by counsel doesn't meet with · writing made when event fresh in Birh certificates, death certificates, and these criteria. memory; mariage records are admissible hearsay if A court may take judicial notice on its · writing by witness/under witness' the maker is required to file the record in a own motion. A party who requests judicial direction by third person; public office, and the record was made and notice should suppIy the court with neces- · witness testifies statement tre; fied as required by law. Utah R. Evid. 803(9). sary information. The opposing party is · writing authenticated as accurate See § 78-25-2, U.C.A (1953) entitIed to be heard before the takng of record of statement. A death certificate is prima facie evidence judicial notice. Upon taking judicial notice, Utah R. Evid. 803. of the facts stated in it. Conclusory state- the court shouId instruct the jury to accept · Spontaneous Declarations ments on the record, for example, statements as conclusive any fact judicially noticed.

28 Vol. 8 No. 9 r....

Utah R. Evid. 201. Pharmacy, 113 S.Ct. 2786 (U.S. S.Ct. 1993). relying upon inadmissible data. There has Limited Purpose Basis for Opinion Unreliable been no showing that experts in the field When counseI has offered evidence and Objection, Your Honor. The witness is reasonably rely upon such data. an evidentiary objection has been sus- basing his opinion on improper matter. The matter upon which the expert bases tained, then try offering the evidence for a There has been no showing that matter on his opinion need not itself be admissible in limited purpose other than the purpose which the expert bases his opinion may rea- evidence. Utah R. Evid. 703. The test is which Ied to the objection. sonably be relied on. Utah R. Evid. 703. whether it is the type of matter that may Your Honor, I would like to offer this Assist Trier of Fact reasonabIy be used by experts in forming evidence for the limited purpose of estab- Objection, Your Honor. This is not a proper an opinion on the subject to which the lishing subject matter for expert testimony since the expert testimony relates. Utah R. Evid. 703. When evidence is inadmissible. for one jury is equally competent to form an opinion. Be on guard against the use of an expert purpose but admissible for another purpose, Utah R. Evid. 704. The ultimate test is simply as a conduit for getting hearsay the court can Iet it in "for a limited pur- whether the field of inquir if "one of such before the jury. A hearing outside the jury's pose". The court shouId state what the Iim- common knowledge" that persons "of ordi- presence may be the safest way to deter- ited purpose is, and what the evidence nar education could reach a conclusion as mine whether inadmissibIe hearsay was cannot be considered for. The opponent of intelligently" as the expert witness. necessarily part or all of the basis for the the evidence should request that the jury be Not Qualified as an Expert opinion. Move to strike the expert's testi- instructed not to consider the evidence for Objection, Your Honor. Insuffcient foun- mony as soon as it is apparent the hearsay X but to consider it only for Y. dation has been laid showing that the witness evidence is inadmissible. Opinion (Expert) is qualified as an expert by special knowl- Opinion (Lay Witness) General Rule: Must have special knowledge, skil, experience, training or education Objection, Your Honor. The question edge about the subject of his testimony and as required by Utah R. Evid. 702. calls for inadmissible opinion. this subject must be suffciently beyond com- Unmistakable trend in recent years has Utah R. Evid. 701 limits the opinion tes- mon experience that the opinion of an expert been towards IiberaIizing the rules relating to timony of a lay witness to such an opinion would assist the trier of fact. Utah R. Evid. testimonial qualcation of medical experts. that is (a) rationally based on the perception 702. State v. Rimmasch, 775 P.2d 388 (Utah Relying on Inadmissible Data of the witness and (b) helpfuI to a clear 1989). Compare Daubert v. Merril Dow Objection, Your Honor. The witness is understanding of his testimony. Personal

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1:1 ii

knowledge is a prerequisite to any lay wit- tected by the confidential marital communi- and would outweigh the probative value of ness' competency. Utah R. Evid. 701. To cations privilege. the evidence. be "perceived," the event must be observed The party asserting the privilege must Unduly Inflammatory: Your Honor, may with the witness' senses. Thus, a Iay wit- show that: we approach the bench? . . . Your Honor, ness cannot express an opinion or draw an · the spouses were legally married; the videotape counsel is about to offer is opinion that is partially based on hearsay. . communication in dispute was made unduly inflammatory and has no probative Personal Knowledge between spouses during time of marriage; value at all, because (describe inflamma- Objection, Your Honor. There is no . communication in dispute was made in tory nature j. showing that this witness has personal confidence. CumuIative: Your Honor, may we knowledge of that matter as required by The proponent of the evidence has the approach the bench? . . Your Honor, under Utah R. Evid. 602. burden of proving communication not made Utah R. Evid. 403, the court should exclude A witness can testify to an issue only if in confidence, or was waived, or falls under evidence to avoid undue delay or needless he has personal knowledge of the matter. an exception. presentation of cumulative evidence. Prior Inconsistent Statement Remedial measures Computer Simulated Accident Under Utah R. Evid. 613 it is not neces- Your Honor, may we approach the bench? Reconstruction: sary to disclose to the witness any informa- . . . Your Honor, counsel is eliciting evidence To date no reported Utah case has ruled tion concerning a prior inconsistent about subsequent remedial measures, and on the admissibility of computer simuIa- statement when the witness is being exam- subsequent remedial measures are inadmis- tion. Computer simulations wil likeIy be ined about such statement. However, there sible to prove negligence or culpabilty. treated Iike other scientific tests. The are circumstances where opposing counsel Utah R. Evid. 407 provides that repair admissibility may depend on a showing that is entitled to the information. measures taken after an event (that is, mea- (l) the computer is functioning properly; Privileges sures that wouId have made the event less (2) the input and underlying equations are Attorney-Client likeIy to occur) are not admissible to prove sufficiently complete and accurate; and (3) Objection, Your Honor. The question negIigence or cuIpable conduct because the program is generally accepted in the calls for the disclosure of communication without this provision defendants would tend scientific community. protected by the attorney-client privilege. to postpone making repairs. Subsequent Writings Utah R. Evid. 504 protects from disclo- remedial measures may, however, be admit- Writings may be direct or circumstantiaI sure of information transmitted between a ted for a limited purpose such as impeach- evidence of disputed fact. They may also be client and his lawyer within the course of ment (i.e., to show prior inconsistent acts or demonstrative evidence ilustrating or that reIationship and which, so far as the statements), ownership, control or feasibility. explaining other evidence. Writings include client is aware, discloses the information to Summaries motion pictures, videotapes, photographs, no third persons other than those present to Utah R. Evid. 1006 provides that "the tape recordings, computerized records, further the client's interest in the communi- content of a writing is not made inadmissibIe artists' sketches, credit cards, graffiti. cation or reasonably necessary to do so. by the Best Evidence Rule if the writing con- Generally, foundation requirements are The client is the holder of the priviIege but sists of numerous accounts or other writings authentication, i.e., the writing is what it either client or lawyer can claim it on the that cannot be examined in court without purports to be. (Utah R. Evid. Art. IX). client's behaIf. great loss of time and the evidence sought With the court's permission counseI Physician-Patient from them is onIy the general result of the may use maps, charts, diagrams, graphs, Objection, Your Honor. The question whole. . ." The court in its discretion may etc. that have not been received in evidence calls for the disclosure of information pro- require that such accounts or other writings in examining a witness to ilustrate testi- tected by the physician-patient privilege. be produced for inspection. mony in closing argument to the jury sub- The patient is the hoIder of the privilege Videotapes ject to the court's discretion. (Utah R. Evid. 506). Under the patient-liti- Authentication: Objection, Your Honor. This (Practice pointer: Before spending large gant exception, there is no priviIege as to videotape has not been properly authenticated. sums on triaI exhibits, meet and confer with communication relevant to an issue con- Relevancy: Objection, Your Honor. This counsel and the trial judge to ascertain their cerning the condition of the patient if such videotape contains evidence that is not relevant. attitude toward use of the contemplated issue was tendered by the patient. Hearsay: Objection, Your Honor. This exhibits.) To Iay a proper foundation, counseI videotape contains inadmissible hearsay. must show: Utah R. Evid. 403: Your Honor, may we CONCLUSION . person to whom patient made commu- approach the bench? . . . Your Honor, under For an excellent review of the Utah nication was licensed medical practitioner; Utah R. Evid. 403 of the Evidence Code, the RuIes of Evidence, see Utah Rules of · patient consulted physician for medical court should exclude evidence where its pro- Evidence 1983 - 1985 Utah Law Review purposes; bative value is substantially outweighed by 63; Utah Rules of Evidence 1983 - Part II, . the communication made as part of the danger of undue prejudice, confusion of 1987 Utah Law Review 467. Part II of the 1.1.11, .'.1 physician-patient relationship. issues, or misleading the jury. Counsel is Utah Rules of Evidence 1983 wil be pub- I Marital Communications offering a videotape that (describe prejudi- lished in the fall of 1995. (Articles written 'Ii 11, Objection, Your Honor. The question cial evidence j. The prejudicial effect of this by Professor Ronald N. Boyce and calls for disclosure of information pro- videotape against my client would be great Professor Edward L. KimbalL.)

'ii

11,1 30 Vol. 8 No.9 ,:1

Direct Examination

By Ray R. Christensen

i. THE IMPORTANCE OF tify to the same facts may be perceived as DIRECT EXAMINATION foot-dragging, or worse - insulting the Direct examination is a subject frequently intelligence of the jury. Be the "good guy" overlooked in triaI seminars. It is perhaps who is trying to move the, case along as less glamorous and less dramatic than cross- rapidIy as possible. examination or closing argument. However, Choose those witnesses who have the it is of critical importance to the outcome of most complete knowledge of the case; the triaL. This is your "up to bat." To win, whose observations put the facts in the best you must score. light for your client; who are most articu- Your case in chief is presented, almost late, and who, by their appearance and exclusiveIy, by direct examination of wit- demeanor, are most credible. Choose only nesses selected by you. This is where you those witnesses who, in composite, will "prove" your case to the trier of fact. No present the strongest case for the client. i If matter how skillful you are at cross-exami- there is a question as to whether to call a nation, and no matter how many holes you particular witness, the old adage, "when in are able to punch into your opponent's case, doubt, don't," is a safe guideline. you cannot reasonably expect to prevaiI Fourth, every game pIan should include solely upon your opponent's weaknesses. an "order of proof," or outline of the order RAY R. CHRISTENSEN,founding partner No matter how good you are at finaI argu- of presenting each piece of evidence. You of Christensen & Jensen, is a past presi- ment, you need something more to taIk should open and close your case with your about than the weakness of your opponent's dent of the Utah State Bar. Named Utah two strongest witnesses. A strong first wit- case. You must have some strengths upon State Bar Lawyer of the Year in 1983 and ness wil create a favorable first impression which to rely. These strengths almost Trial Lawyer of the Year in 1993, he is with the trier of fact which will carry always must be presented to the jury also a Fellow in the American College of through the rest of the case. Your Iast witness through direct examination. Trial Lawyers and the International will be the one who wil be best remem- Good direct examination, that is, good Academy of Trial Lawyers. Mr. bered when the jury retires to deliberate. presentation of your case in chief, is largeIy Christensen is a charter member and past Ideally, the testimony of each witness shouId a matter of common sense. It is amazing, president of the American Inn of Court I reI ate in some fashion both to that of the nonetheless, how frequently an ineffectual and is a member of the International preceding witness and the following witness. presentation is made. Association of Defense Counsel and the If possible, don't conclude the direct Federation of Insurance and Corporation examination of an important witness near II. CREATING THE GAME PLAN. evening recess to avoid giving your oppo- CounseL. First, to present an effective case in nent all night to prepare for cross-examina- chief, consider what facts you need to prove tion. Present "heavy" evidence, such as (or disprove) to prevaiI at triaL. For most expert testimony, when the jury is most should not be called for several reasons: attorneys, this is best accomplished by alert and attentive, which is usually during preparing a written outline. (a) The court may not receive or wil the morning session of court. greatly restrict cumulative evidence. Second, take an inventory of available Keep the game plan as tight and com- evidence to prove or disprove the crucial facts. (b) Some witnesses are more convincing pact as possible. Discard the irrelevant and in reIating their testimony than others. While Third, after the available evidence has triviaL. Too many cases are spoiled by a some repetition may be essential to get the point been canvassed, decide what evidence is weak opening witness whose testimony is across, too much repetition may be counter- indispensable to the presentation of the of littIe importance to the case. The jury is productive. The trier offacts may tire of hearng case, what evidence is probabIy heIpfuI, immediately bored, confused, and disinter- the same evidence repeatedly. Furthermore, and what evidence is better left out. If only ested. Focus on the major points of your the testimony of weaker witnesses may diIute one witness has knowledge of a cruciaI fact, case. Do not be distracted by red herrings. the testimony of stronger witnesses. that witness is necessary and must be Caution: The game pIan must be flexible. (c) Almost without exception, jurors called. If several witnesses have knowIedge Things do not always go as anticipated at triaL. of the same facts, some of them probably desire to have the case tried as expeditiousIy as possible. Calling severaI witnesses to tes-

32 Vol. 8 No.9 ~

good teacher. A long strng of academic 9. Exhibits. on cross-examination, or may become con- degrees is no guarantee of good expert tes- It is axiomatic that "a picture is worth a fused under the stresses of the courtroom timony. Avoid those who are pedantic, thousand words." The range of possible atmosphere, and give erroneous or incom- "ivory tower" types and professionaI wit- exhibits is limited only by the imagination of plete answers. It then becomes necessary to nesses ("hired guns") to the extent possible. counsel and/or the expert, and the financial attempt to rehabiltate him. Ask for a recess In qualifying an expert, it is not neces- resources of the client. ModeIs, computer- before conducting redirect examination, sar or even desirabIe to recite all of his or ized re-enactments, video tapes, maps, slides even though there may have been a recess her academic degrees, pubIications, and and overheads are only a few of the things onIy a short time before. A request couched work experience. A long recital of qualifi- which have been used as court room exhibits. in terms something like the following, wil cations can be boring and even may give an Besides their value as teaching tools, they usually be honored by the court. "Your impression of arogance. Quality, not quan- add varety to the presentation, and tend to Honor, I have only a brief re-direct exami- tity, makes a good impression. If you give hold the jury's attention. nation, but I beIieve that it might save us the judge or jury reams of information, they Most exhibits have to be identified by a some time if we could take a short recess wil remember none of it. Some qualifying witness before they are admissible. If a wit- now." experiences can be better reserved and . ness is to be asked to identify an exhibit, it The recess, of course, is used to make woven into the opinion testimony, or the should be reviewed with him or her before- clear to the witness where he or she has bases of the opinions. For example, "When hand. You must be sure that the witness is gone astray, and arrive at a set of questions I was at Princeton, I did a research project familiar with the exhibit, can positiveIy iden- which wil hopefully clarfy and straighten on this very problem, and I subsequently tify it, and, if necessary, explain it. If an out the entire matter. Redirect examination published an aricle on the same subject in exhibit such as a diagram, char, model or should always be brief. Its purpose is not to Science, a peer review journal." gadget requires an explanation, the witness replough the ground which was covered in Under modem day practice, the expert must walk through it with the trier of fact, direct examination, but only to rehabilitate (once qualified) may state his or her opin- clearIy explaining exactly what the exhibit the witness. However, if something impor- ion and the reasons therefor, at the outset. shows or demonstrates. tant to the case was inadvertently omitted Most experienced trial attorneys prefer to Many documents, such as lengthy con- from the direct examination, leave can usu- present it this way. Once the opinion has tracts, product manuals or instructions, hos- ally be obtained to go into it on redirect been stated, the underlying data which sup- pital records, etc., are far from understandabIe examination. port the opinion become more meaningful to the average juror. Documents of this type In most cases, cross-examination is your to the trer of the facts. should be kept to a minimum, although they friend. It frequently repeats and emphasizes It is imperative that the expert testify in may be necessar as a foundation for oral testimony that was developed on direct plain understandable EngIish. TechnicaI testimony. In most instances, the important examnation. It may also open doors wide jargon shouId be avoided. Some experts, language wil be reIativeIy brief. Its location for your witness to give detaiIed expIana- intentionally or not, overwhelm everyone in the document should be identified to the tions in support of his testimony. If a wit- in the courtoom with polysyI1abIe techni- jur, preferably by the witness, although on ness is knowIedgeable and has testified cal words. The best experts can make their some occasions, the examner may read the honestly, he or she cannot be damaged opinions come alive to ordinary people. critical language to the jury. The same Ian- much by cross-examination. The more the Experts frequently can educate the jury and guage can again be read to the jury during cross-examiner attempts to discredit, the hold their attention by drawing sketches or closing arguments. better image the witness creates, and the diagrams as they speak. The drawing or sketch The number of exhibits, like the number of stronger his or her testimony becomes. If can then be marked as an exhibit and offered witnesses, should be carefully limited. A jury cross-examination has gone well, there is in evidence. The expert's role is to be a can be overwheImed with a mass of paper. At no need for redirect. In fact, it is con- teacher, not an advocate. He should convey best, they wil disregard it. At worst, they traindicated. the impression of fairness and impariality. may be compIetely turned off and disregard In summary, create an organized game Under modem practice, the hypothetical the rest of your presentation. pIan for direct examination, execute it well, question to the expert has virually disap- Exhbits should be carefully organized in and don't rely soIeIy on the weakesses of peared. Most experts investigate the issue the order in which they are expected to be your opponent's case to win. at hand in order to prepare themselves to offered. They should be readily avaiIabIe 1There is an excellent paper on the subject of "Selecting the testify. There is, therefore, very rareIy any when they are needed. Nothing ruins the Right Trial Witnesses" in the Winter 1991 Number of need for the hypothetical question. If a flow of a case Iike having to search for an Litigation by Lundquist at p. 25. 2Although I have never tried it, many practitioners recom- hypothetical question is to be used, it must exhibit which is intended to be offered. A mend makng a video tape of the witness' proposed testimony. be very carefully drafted and written out in trial associate or a paralegaI can help track This can be relatively inexpensive, and the witness can see exactly how he or she does. exhibits so they are readiIy available as detaiL. It should be carefully reviewed with 3If there is a question whether the adverse evidence is admis- the witness. Indeed, a copy of the proposed needed, and keep an accurate record of those sible, it is wise to fie a motion in limine and to attempt to get question shouId be presented both to adverse exhibits which are offered and received. a court ruling prior to trial, to exclude the evidence. If there is any reasonable probabilty that the court wil receive the evi- counsel and the court in advance. Any dence, it should be developed on direct examination. There is objections to the question should be iv. REDIRECT an excellent article on "Exposing Your Warts" in the previ- resolved before the witness even goes on Re-direct examination is used primarily ously cited issue of Litigation by Fullenweider at p. 22. the stand. for damage control. Not infrequently, a witness may misunderstand questions put to him

34 Vol. 8 No. 9 Cross Examination

By Robert S. Campbell, Jr.

i. INTRODUCTION examination. In providing a setting for Much has been written and more said strong and meaningful cross examination, it about the judiciaI philosophy and psychol- is well to spend a few moments reviewing ogy of cross examination. There is no rea- the myths of what cross examination is not. son to expect that this wil be the last. In MYTH 1 - Every adverse witness fact, some of the best materiaIs written on must be cross examined as to what has been cross examination were published over 50 said on direct examination. years ago. More recentIy, Exhibit A of MYTH 2 - Waiving cross examination "how not to conduct cross examination" is the sign of a weak lawyer or a frail case. has been seen on virtually every television MYTH 3 - Every witness needs to be set in America this past year as a result of a examined on every issue, even if it means sensational criminaI trial in Los AngeIes. repeating the evidence a second or third Purportedly skiled cross examiners time. have appeared on the screen incapable of MYTH 4 - Every witness should be asking short, punctuated and non-repetitive attacked for bias, competency, experience, questions. Rather, the examination has been knowledge, or all of the above. conducted as though a jury is incompetent MYTH 5 - The form of the question to arrive at even the most self-evident con- ROBERT S. CAMPBELL, JR., senior on cross examination is not particuIarly clusion, but rather must be led by the paw partner in Campbell Maack & Sessions, important. to the mundane conclusion of every redun- practices in trial and appeal of corporate MYTH 6 - Cross examination needs to dant point. and complex commercial litigation, be hostile, acrimonious and abusive in In all but that one California courtroom, including antitrust, products liability, order to reflect the proper degree of right- no other method apart from cross examina- intellectual property, investment fraud, eous indignation. white collar crime and eminent domain. tion has yet to be invented in our socratic He has participated as lead trial counsel MYTH 7 - Preparing for cross exami- process which, if employed properly, is bet- in over 425 major litigated trials and nation deprives the trial of spontaneity. ter able to penetrate bias, expose fault and approximately 85 appeals, including the phony argument, and reveal the uItimate United States Supreme Court. A Fellow in III. FOUNDATIONAL PRINCIPLES truth. It is a method which, upon proper the American College of Trial Lawyers TO SUCCESSFUL use, can devastate the opposite side's case. and the International Academy of Trial CROSS EXAMINATION As the Supreme Court of Utah wrote: Lawyers, he was selected as Utah Trial A number of these principles are unre- There is no other instrument so well Lawyer of the Year in 1992 by the markabIe insofar as they reIate to the prepa- adapted to discovery of the truth as American Board of Trial Advocates. ration of the larger case. Nonetheless, they cross examination, and as Iong as it deserve mention in any roll call of the tends to disclose the truth it should factors instrumentaI to a winning cross never be curtaiIed or limited. Any through association with some of the best examination. inquiry should be allowed which an common Iaw trial lawyers in this Country 1. Be prepared. Prepare in some detail individuaI about to buy would feel it and England. an outline of cross examination, even to the in his interest to make. extent of writing out key questions. The State of Utah v. Peak, 265 P.2d 630, 637 II. THE FOIBLES OF notes, themselves, may never be used in the (Utah 1953). CROSS EXAMINATION actual cross examination and in all events, Despite its importance, cross examina- In many if not most cases where it is a you wil not read verbatim from the notes. tion remains one of the most diffcult skils close call on the facts, cross examination Rather, the notes enable the examiner to: to utilize effectively. The Primer which fol- may be the key to unlocking the mysteries or . prepare where to go with the witness; lows assumes the typicaI case, with the the conflict in the evidence. Often, it wil . select the areas of examination to unusual case or witness aImost always determine the outcome in the case. For a tooI pursue with the witness, as well as the invoking an exception to the rule. It wil that can be so decisive in resuIt, it is wrapped areas not to pursue; examine generaI concepts appIied to a typi- in a shroud of myths which are Iargely · select the documents to be used on cal witness which have been assembled responsible for the perplexities of cross cross examination and the order of use;

November 1995 35 . determine when, if at all, the witness' allow a witness to tell his story two or three RULE 7 - Ask questions on cross bias or credibility should be attacked; times, but rather to test specific aspects of examination which can be answered with . determine the subject matter and the that story in light of experience or conflict- "yes" or "no". While some judges may line of questioning to terminate the cross ing, contradicting, or questionabIe evidence. allow a witness to go to any length, how- examination. For a witness who has presented either mem- ever irreIevant, to give a narrative answer to · add spontaneity and allow more flex- orized or chronoIogicaI testimony, take spe- a "yes" or "no" question, most trial judges ibility with follow-up questions. cific areas on cross examination out of order wil require an answer. Regardless if the 2. Know The Rules of Evidence. Even or out of their chronologicaI setting. witness does give a narrative answer, wait though you are familiar with the common RULE 3 - Know the answer to each untiI the witness is finished and then ask the law and prescribed written Rules of Evidence, question before asking it. The purpose of following question: spend thirty minutes re-reading them to strong cross examination is not to provide the Q. Have you now said all you want to say? refresh your recollection. It wil help you witness a forum to repeat his direct examina- A. Yes, I believe so. get a grasp on the entire case, as well as the tion, but rather to clarify, to show an incon- Q. Then I would like you to answer my specific areas of cross examination. sistency, a contradiction, or a pòint that is question - then repeat it or have the court consistent with other parts of the cross exam- reporter read it back. " iv. TWELVE COMMANDMENTS iner's case-in-chief. Use of the questions After that happens two or three times, OF SUCCESSFUL "why" and "what happened next" should be even a Ienient judge on cross examination CROSS EXAMINATION generally avoided unless the cross examiner will require the witness to give an answer The following rules have not been nec- knows that the answer is going to assist his or that is not evasive. At times, an "anything essarily prioritized, but they wil come into her case. goes" judge wil not require the witness to play in some form during the cross exami- RULE 4 - Be polite. Attorneys should be at all responsive, in which case the best nation of almost any witness. I wouId dub be poIite during cross examination, but not cross examination wil be blunted. them the Twelve Commandments of Cross sycophantic, even in the face of arrogance. A If you want to take a page out of the Examination. considerate but firm approach to a witness book of "Horace RumpoIe of the Old RULE 1 - Decide whether the wit- may be disarming and resuIt in more candid Bailey," the following line of examination ness should be cross examined at all. If responses. This notion conforms to the old might be pursued after the witness has the witness has had difficulty on direct saying that "more fles are caught with honey given a compIetely evasive, argumentative examination, if your objections have kept than with vinegar." and self serving answer: out the key evidence the witness had to Q. Mr. Witness, do you suffer from a hear- offer, or if it is a particuIarly dangerous wit- ing impairment? ness who may give damaging evidence on A.No. redirect examination, cross examination "Even though you are familiar Q. Then please force yourself to answer my shouId be waived. The waiver can occur last que~tion - the question is (then repeat). within a framework that wil yieId the con- with the common law and RULE 8 - Do not quarrel with the clusion that the witness has said nothing of prescribed written Rules of witness. An experienced cross examiner importance to the case. Most experienced wil not get into either a shouting match or trial Iawyers can recount cases in which a Evidence, spend thirty minutes re-reading them to refresh your an argumentative confrontation with a wit- witness who has been damaged or has not ness. Maintain the position of examiner and otherwise fared well on direct examination recollection. It wil help you get don't allow the witness to engage in a has repaired and restored his credibility on a grasp on the entire case, seman tical debate or ask questions in cross examination. Generally speaking, as well as the specifc areas response. there is much wisdom in the oId adage that RULE 9 - Quit when a favorable "Iess is more" when it comes to cross of cross examination." answer is received. Quit even though the examination. answer is not as firmly impIanted as would RULE 2 - Questions should be pre- be desirable. The cross examiner who follows cise if not surgical in subject matter. One up a favorable answer with a "clarifying" or of the more unflattering exempIars of cross RULE 5 - Ask the most important "summing up" question, only highlights the examination is a lawyer going to the questions as if they were just ordinary importance of the previous answer and podium with notebook in hand and pro- issues. Do not build up to the gIorious or inevitably the witness modifies or changes ceeding down a checklist of virtually every- crowning question, unless you know quite altogether the prior answer, bIunting the thing the witness said on direct preciseIy how the witness is going to answer. success of the earlier examination. examination. What is accomplished More often than not, that sort of cross exam- RULE 10 - Develop testimony on through that maneuver, most of the time, is ination results in disappointment. cross examination that is favorable to simpIy a restatement of what the witness RULE 6 - Use short, concise and pin- your side. Pursue a line of examination that has already had to say on direct examina- pointed questions. The tempo of cross adds emphasis and requires the witness to tion, with a concomitant and damaging examination is extremely important and a elaborate on favorable points. For example, emphasis on the points made. rapid series of short questions will be when the defendant is called as an adverse Cross examination was not conceived to impressive. witness and acknowledges that his conduct

36 Vol. 8 No.9 has resuIted in a setback of plaintiff's busi- years rather than ask the generaI question: examination. If he answers "no", he wil ness, the question could be asked: Q. SO in the seven years after the accident in acknowledge his lack of knowledge of the Q. Isn't it true, that plaintiff's business has this case, you have never seen the plaintiff facts or experience in simiIar matters. been damaged in a number of ways by the walk with a limp? conduct of your company? RULE 11 - Don't ask remaining ques- v. CONCLUSION A. Yes. tions once a line of questioning has Bear in mind, the purpose of cross However, it wouId be more emphatic severely damaged credibilty. Once credi- examination of an adverse witness is to and persuasive to turn the question into a bility has been destroyed, continued exami- point out quickly and surgically the fallac- line of examination: nation of the witness on other issues may ies of his evidence, his bias, lack of Q. Tell the jury, specifically, the ways in allow him to restore his credibility and erase integrity or credibility, and to develop the which your company's conduct has harmed the importance of the previous damaging truth of your client's case. The better the the plaintiff's business. admissions. If the damage is something that lawyer knows his case and has confidence A. Well I don't know his exact business, I the cross examiner knows may be cured on in it, the clearer the nature and extent of just know that there are probabIy some redirect examination, the cross examination cross examination wil be. things that have caused some business should possibIy continue. However, if the inconvenience. damage is incurabIe, the best approach is Q. Well, with the experience that you've often to conclude all cross examination so had in business, tell us specifically what that the jury remembers the witness' damag- your understanding is as to each of those ing admission as the last evidence received. factors of inconvenience? RULE 12 - Attempt to develop the The same approach may be taken with a cross examination so that the witness faces witness who acknowledges that he has the dilemma of making a damaging admis- known the plaintiff for seven years, but sion, no matter which way the question is never has seen him limp. The cross exam- answered. If the answer is "yes", he will iner should go through each one of the admit the substantive aspects of the cross

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November 1995 37 Plaintiff's Experts: Finding, Preparing and Presenting an Expert Witness

By W. Brent Wilcox

i. LOCATING A GOOD EXPERT. tent of the smoke in the air during the initial Locating and retaining the right expert stages of the fire. We were trying to deter- witness is a vital skil which must be mine whether polyurethane was consumed learned in order to have a winning trial in the initiaI stage of the fire. Our expert practice. Such a skill is not taught in tested the masks and claimed he had found schools and must come from experience irrefutable evidence that the poIyurethane and common sense. Work hard to find your burned. At his deposition it was reveaIed expert witnesses. Expert witness services that he had ruined the evidence and his tes- are heIpful but I look beyond them initially timony was useless. The case finally got and try to find experts who have had excep- settled, but we had to overcome a major tional practical experience with the subject hurdle caused by his ineptitude. If we had matter of the lawsuit. The expert who has hired another expert, he would have seen worked with the product or the process in early on what was happening and could issue wil have much more credibility than have warned us. the theoretician. A void using experts that you distrust or You would be surprised at how easiIy who appear too slick. If you believe you you can find good expert witnesses if you need them despite your concerns, taIk to get out of your office and start talking to W. BRENT WILCOX is president of the other attorneys who have used them. people in that industry. I tried a mining case personal injury firm of Wilcox, Dewsnup Make sure you have a clear understand- a few years ago involving a roof faIL Our ing as to the fees which the expert wil & King, where his practice concentrates expert witness was a former supervisor charge, the manner in which they want to on representing plaintifs in workplace from the mine. When we found him, he was be paid (i.e., on a monthly or quarterly working for another company outside Utah. injury and product liability claims. He is basis), and, if you are dealing with a corpo- He walked into court wearing working a Fellow in the American College of Trial ration, make sure you understand who is clothes and a cowboy hat. The jury gave Lawyers, a past president of the Utah going to do the work and what leveI of great weight to this unsophisticated man Trial Lawyers Association and is on the charges each person wil be charging. It is a who had worked for many years in the good idea, initially, to set dollar Iimits on Board of Governors of the American Trial mines. I always try to find such an expert. the amount of work you want the expert to Lawyers Association. In addition to his Find your expert early in the case. Many do until you get the feeI of the expert and membership in the American Board of a case has been lost or unduly complicated the case. because experts were not brought into the Trial Advocates, he is also a Master of the Since credibility is the key issue, Iook at case to heIp develop the appropriate theories. Bench in the American Inns of Court VII all aspects including physical appearance, When you meet with your prospective sincerity, demeanor, experience, and com- expert, it is critical that you be prepared to munication and teaching skills. One of my present the facts and the essentials of the readiIy agrees with you. most successfuI experts is a retired profes- case to him. Some experts wil be put off,if In complex and Iarge cases, it is a good sor from Brigham Young University who is you are not prepared. They will follow idea to have overlapping experts who can a very good teacher. He is abIe to use his your Iead in the attention that they give to give you protection against being misIed or years of teaching experience to develop the case. worse. In the Sunshine mine disaster case, effective ways of explaining difficult con- Do not immediately discard an expert we hired an expert witness who had worked cepts to the jury. who initially disagrees with your position. with NASA and was highIy recommended. Don't be afraid to discard an expert if he He may convince you that your case is mis- We gave him custody of some critical and can't help you. placed, or it may be that if further facts and irreplaceable evidence - respirators that had Use consulting experts. They can be information convince the expert, you wil been worn by the miners who died. The res- extremely valuabIe to your case in helping end up with a better expert than one who pirator filters contained evidence of the con- you develop your theories and facts.

Vol. 8 No.9 38 c II. PREPARING THE WITNESS. BYU professor expert once created a simple their opinions would be heIpful, particu- Have your expert visit the locale where demonstration that cost only $1,200. It was larly where there is a difficuIt issue unre- the accident occurred and inspect the prod- much more effective than the sophisticated soIved, having all of your experts meet and uct or process involved. Give the expert all testing that would have cost us $30,000- arrive at identical opinions gives an appear- of the known facts and issues. I prefer to 40,000 at a laboratory. ance of orchestrated' opinions. However, provide transcripts not summaries of depo- having more than one expert come to the sitions. I am suspicious of experts who are same conclusion by different routes lends only given a portion of the facts; therefore, credibility to the opinions. I make sure the expert has all of the facts, "Do not force your theory on Know and inform the expert of the positive or negative. applicabIe ruIes for expert testimony in Do not force your theory on the expert the expert since it is now a your jurisdiction. In Utah, the following since it is now a partnership in which you partnership in which you should ruIes of evidence apply: should work with the expert in deveIoping work with the expert in developing RuIe 702. Testimony by experts. the proper theories. The attorney remains the proper theories. The attorney If scientific, technic aI, or other the captain, but the expert is the heImsman. specialized knowledge will assist the The expert shouId participate in deter- remains the captain, but the trier of fact to understand the evi- mining what other facts need development expert is the helmsman." dence or to determine a fact in issue, and what work needs to be done in order for a witness qualified as an expert by a finaI opinion to be formed. If testing or knowledge, skill, experience, training, computerized re-creation are contempIated, or education, may testify thereof in make sure that you and your experts fully Finalize the expert's opinion, always the form of an opinion or otherwise. discuss all aspects of such work, including leaving the expert flexibility if new facts See State v. Rimmasch, 775 P.2d 388 (Utah the things that may go wrong. Testing and come to light before triaL. The use of multiple 1989) and its progeny. computerized re-creation are costly and experts has potential pitfalls which you must Rule 703. Bases of opinion testimony often do not enhance the case. Look for an be careful to avoid. While there are situations by experts. expert who is abIe to demonstrate a phe- where having the experts meet and discuss The facts or data in the particular nomena in a simpIe, inexpensive way. My case upon which an expert bases an

NOTICE TO ALL BAR MEMBERS Regarding Mandatory Continuing Legal Education Late Fee Increase The Utah Supreme Court has approved a late filing fee increase from $10.00 to $50.00 in the Rules and Regulations governing mandatory continuing legal education. The purpose of the increase is to create incentive to file timely, as well as to cover the administrative costs associated with untimely filings. The change affects regulation 5-102 which would read as follows:

Regulation 5-102 In accordance with Rule 8, each attorney shall pay a filing fee of $5.00 at the time of filing the statement of compliance. Any attorney who fails to file that statement or pay the fee by December 31 of the year in which the reports are due shall be assessed a $50.00 late fee. The court's approval was conditioned upon a 45-day comment period before the court takes definitive action to approve the change. The comment period begins October 16, 1995. Please direct any questions or comments to Sydnie W. Kuhre, MCLE Board

November 1995 39 opInion or inference may be those seI if the witness knows the facts, testifies with an inexperienced expert or an expert perceived by or made known to the directly, and is not argumentative and with whom this is your first experience, expert at or before the hearing. If of a arrogant. conduct an informal dIIect examination and type reasonably relied upon by Occasionally, an expert may at the depo- cross-examination. However, do not use experts in the paricular field in form- sition present such important and compelling this as an attempt to rehearse the questions ing opinions or inferences upon the opinions that the case settles. For example, in and answers since they may appear staged subject, the facts or data need not be one of my cases, the victim was working if you do. Teach the expert to avoid the admissible in evidence. with cyanide in a gold mine and somehow he "yes/no" hypnotism that can come in a Rule 704. Opinion on uItimate issues. got a dose of hydrogen cyanide even though series of leading questions, but rather to (a) Except as provided in sub- he was wearing a protective mask. Well into answer the questions with substance. paragraph (b), testimony in the form the case, an expert showed us how this acci- of an opinion or inference otherwise dent happened. He demonstrated how a Iitte IV. PRESENTING THE EXPERT admissible is not objectionabIe saliva couId dry on the mask and cause a WITNESS AT TRIAL. because it embraces an ultimate issue small diaphragm to not close properly. We Take enough time to establish the exper- to be decided by the trier of facts. had Iearned through discovery that a pIastic tise of your expert even though it seems a (b) No expert witness testifying cover on the mask had been made for a dif- little monotonous. Avoid stipuIations that with respect to the mental state or ferent kind of a mask but had been soId with the expert is an expert. The jury needs to condition of a defendant in a criminaI this particuIar mask because the manufac- know about the expert's background and case may state an opinion or infer- turer had some extras. The expert demon- why she is an expert. ence as to whether the defendant did strated the defect at his deposition. The case Have the expert educate the jury on or did not have the mental state or settled shortly thereafter. whatever technicaI terminology is invoIved condition constituting an element of Before the deposition, spend whatever in the case and, in his opinions. the crime charged or of a defense time is necessary to make sure the expert Use the expert to present demonstra- thereto. Such uItimate issues are mat- understands the key legal phrases and con- tive evidence and tests if they have been ters for the trier of fact aIone. cepts involved in the case, and that he is able conducted. to express his expert opinions, keeping in Take on negative issues in your direct III. THE DEPOSITION OF mind the proper legal form. examination and the expert should be will- YOUR EXPERT. The expert wil be persuasive in deposi- ing to concede points which are obviously Sell your case when your opposition tion and at trial if the expert is telling the in the opponent's favor. takes your expert's deposition unless you truth; knows all of the facts, both positive Without being patronizing, have the don't want to settle it. and negative; knows the contentions of the expert be a teacher to the jury. Your expert must have a definitive the- opposite side; stays within the expert's own Even though the ruIe allows an expert to ory and thoroughly know the facts under- reaIm of expertise; and is not seen as being give her opinion without disclosing the pinningthe opinions. coached durng the deposition by the attorney. foundational facts, it is a good idea to give An expert impresses the opposing coun- Before deposition or triaI, particuIarIy a few of the key facts in your opinion question and then have the expert expand and explain the factuaI underpinnings of the opinion. Remember, though, that cross examination gives your expert an opportu- Great Idea! nity to expand on the underlying facts. If the expert is in court for any extended time before or after his testimony, see that Advertising in the Utah he does not appear to be a member of your Bar Journal is á really team; rather, keep him aloof. Recently, there have been cases where great idea. Reasonable lawyers have sued their experts for mal- .. 'n rates and a circulation practice. Keep in mind, however, that if you ..- are the lawyer that is involved in hiring and of approximately using the expert, you may be brought into such a lawsuit. Therefore, make sure the 6,000! Call for more expert is given all the facts. Finally, some recent decisions have held information. that a lawyer's Ietter to his expert witness is ./ admissible in evidence. If you are going to 'e ø write a Ietter to your expert, write it with f .. =' \" Shelley Hutchinson the understanding that it may be given to the jury. .. (801) 532-4949

40 Vol. 8 No.9 Defense Experts: Defendant's Examination of Experts

By Harold G. Christensen

Lawyers rely too much on experts in The most qualified experts from an presenting their cases. Trying a case objective standpoint often turn out to be the through an expert witness is far less effec- very worst witnesses, uncertain, overly willing tive than generally believed. A judge or to concede possibilities and too agreeable. juror will hold more tightly to a conclusion Therefore, in selecting an expert, make arrived at by them from the evidence itself sure that the witness is not only qualified as than to a conclusion presented to them by an expert in the field, but also is able to an expert witness. In addition, expert testi- communicate with the judge or jury, and to mony is also attended with great risk. defend your theories under cross-examina- There are several threshold questions tion. I have found that high-schooI teachers that a defendant should consider before can be very effective expert witnesses calling an expert. First, when can a defen- because they are accustomed to explaining dant call an expert? CiviI Procedure Rule complex ideas at a beginning level of 702 provides a broad standard for admissi- understanding. As major corporations have biIity. This very broadness may encourage been downsizing in recent years, many very lawyers to feel a need for expert testimony qualified people have become independent when expert testimony is not required. consultants. Often these consultants make However, an expert is necessary where HAROLD G. CHRISTENSEN served as effective expert witnesses. the establishment of the standard of care Some business clients prefer to use their Deputy Attorney General of the United requires professional expertise. The Utah in-house experts as witnesses. ObviousIy, Court of Appeals dealt with this issue in States during the Reagan and Bush these experts have a bias, but usually they Schreiter v. Wasatch Manor, 871 P.2d 570 administrations, where he had responsi- are better informed about the subject matter than independent consultants. Company (Utah App. 1994), where an apartment res- bility for the operations of the Department ident sued the owner for smoke inhalation experts should not necessarily be ruled out, of Justice and direct supervision over all injuries suffered when the apartment house therefore, particularly if they are abIe to caught fire. The defendant moved for sum- civil litigation divisions. Before serving as present well to the fact finder. Using in- mary judgment, contending that the pIain- Deputy Attorney General, Mr. house experts also avoids the problem of tiff was required to present expert Christensen was Chairman of the Board disclosing proprietary information. testimony to establish that the apartment Defense attorneys need to be famiIiar of Snow, Christensen & Martineau which owner was required to install a fire sprin- with the rules of evidence on expert wit- kIer system. The court of appeals held that he first joined in 1953 and recently nesses, and with the case law interpreting expert testimony was not required, and rejoined as counsel to the firm. those rules. In particuIar, defense Iawyers stated that expert testimony is only required should consult the case of Daubert v. "where the average person has little under- Merrell Dow Pharmaceuticals, 43 F.3d standing of the duties owed by particular expert with a background in that same disci- 13 11 (9th Cir. 1995), where the Ninth trades or professions, as in cases involving pline. Instead, the defendant shouId put on an Circuit in attempting to follow the Supreme medical doctors, architects, and engineers." expert from a recognized discipIine to call Court opinion, exemplified the frustration 871 P.2d at 574-75. into question the credibility of the other the lower courts are having in interpreting Some defense attorneys feeI a need to expert's discipline. the Supreme Court's mandate in Daubert, call an expert whenever the plaintiff calls Assuming that the decision is made to call 113 S.Ct. 2786 (1993). Although there is a an expert. This is unwise if the issue is a an expert, the next step is to find the right diversity of views on the meaning of matter of common sense. expert. Paradoxically, the most effective wit- Daubert, my own view is that it is intended When the defendant intends to claim ness often is the least qualified. The least quali- to permit experts to testify when they have that the pIaintiff's expert is from a scientific fied witness may be the most ariculate, the best a minority position. That is, the experts discipIine that has no credibility, the defen- presenter, the best-appearing to the jury, and may testify where their view on the science dant certainly would not want to put on an the most able to withstand cross-examination. does not represent the beliefs of a majority

November 1995 41 of the experts in the fieId, but nevertheless form that you can be reasonably assured of Many experts aIso tend to give speeches is based on credible minority support. receiving an affrmative response. The ques- in response to questions on cross examina- The examination of expert witnesses is tions are not nearly as important as are tion. When this happens, it may be helpful probably easier than any other form of wit- repeated affirmative responses. To the jury, to politely say to the witness "That was not ness examination, particularly if the expert repeated affirmative responses indicate a my question. Would you kindly answer my is experienced, skilled and articulate. good cross examination. It can make the question which I will put to you again. And Although the rules have been liberalized plaintiff's expert appear to be making far then after you have answered my question, and no longer require a step-by-step review more concessions than he actually is. you may explain your answer if you wish of the expert's qualifications and activities, Iii It is not entirely true that cross examina- to. Would that be fair?" The witness will I beIieve that careful questioning is very tion is the greatest vehicle for ascertaining say "Yes." After the question is then put to 'i heIpful and persuasive. the truth. Dishonest expert witnesses often the witness, the witness usually gives only r~ Direct examination of an expert shoiîld are the hardest to cross examine and can frus- the answer without the expIanation. This begin with the expert's qualifications, even trate the search for truth. works better than arguing with the witness if opposing counsel is wiling to stipuIate or asking the judge to chastise the witness. L that the witness is an expert. The factfinder The most effective way to present a case should next hear about the data that the to the factfinder is to present an opening expert relied on in support of the opinion to statement that argues itself, and to then pre- "It is better on cross examination to :~ be expressed although this is not required. sent the witnesses in a sequential order that After that foundation is laid, the expert may focus on particular areas and ask also argues for the result that you are seek- ill be asked for the opinion, and then asked to particular questions in such a form ing. That proof should then be followed by '1 explain how the data supports the opinion and that you can be reasonably assured a final argument that reinforces the conclu- does not support the contrary opinion that sion that already has been reached by the the plaintiff's expert already has expressed. of receiving an affrmative response." judge or jury. Presenting the case in this It is helpfuI then to ask the witness to manner is more forceful than having an testify about any tests or other efforts used expert witness argue the case for you. to verify the opinion offered. Finally, direct examination should end with a showing

II that the expert is not biased for either side. It helps, for exampIe, that the witness testifies in both pIaintiff's and defendant's cases, and that the witness does not make his or her Iiving solely from acting as an LAWYERS: expert witness. It is good if the expert actually has a real job. YOU BE Demonstrations and experiments can be very effective if done properly. Video pre- THE JUDGE. sentations are best. A demonstration in open court in front of the jury can be dev- Choosing professional liability insurance requires a judicial mind. astating when it fails, as it occasionally As insurance administrator for the Lawyer s Protector PlantE, we 11 does. As an exampIe of how a live demon- make the decision easy because we offer extraordinary coverage. i stration can backfire, I would refer you to The Lawyer's Protector Plan is underwritten by Continental the O. J. Simpson case, where the prosecu- Casualty Company, one of the CNA Insurance Companies. r tion attempted an in-court demonstration to We can show precedent, too. More and more show that the "bloody glove" fit O. J. attorneys throughout the nation are Simpson's right hand. It appeared that the siding with the Lawyer s Protector Plan. gIove was too smalL. This may have had a Your peers have made a good decision. devastating impact on the case. Now you be the judge. ~~~~~~ A video presentation avoids surprise. Moreover, jurors are accustomed to watching teIevision and give video presentations ~l)~\ij~ great credibility. Sedgwick The cross examination of the pIaintiff's Phone SEDGWICK of IDAHO

11 expert witness could follow the same form J as the direct examination of the defendant's 800-523-9345 (Idaho) expert witness. However, that broad-based CNA (lItt.j"l'j.t) , 800-635-6821 (Regional) ~'or All t~Commitllnt. You Milk..' assault is rarely effective. It is better on cross examination to focus on particuIar The Lal\)'er's Proiector Plan' is II registered Strvice mart of Poe & Brown, Inc" Tampo, FL. CNA is a regislerd senice mark of the CNA Fùuincial Corpra/ion. CNA Plow, Chicago, IL. areas and ask particular questions in such a

42 Vol. 8 No.9 Plaintiff's Closing Statement

By Richard W. Giauque

The shorter the trial, the more important whether they were looking after their closing argument. CIosing argument is Iess own interest, their own economic important in a longer trial because the interest and willing to sacrifice his. jurors' minds have often been made up for He confronted the defendant's presi- some time about you, your case, and your dent, who assured him that wasn't the witnesses. CIosing argument confirms in case. the minds of jurors the generaI impression In concluding, this same personaIized the evidence has already made on them. theme was repeated. Literature on jury triaIs confirms that most If you were in the pIaintiff's position jurors make decisions early about their ver- and the defendants gave you that dict. Indeed, 80 to 90 percent make up their memorandum and it said you were minds during or immediately after opening going to get one thing, and then later statements. See D. Vinson, "Juror Psychology claimed that they were paying you on and Antitrust Trial Strategy," 55 Antitrust a basis contrary to their own memo- L.J. 591 (1986). Because of this, counsel's randum, would you get unhappy? argument should give the jurors reasons for Would you get upset? Might you get their opinions in language that they under- an attorney and assert your rights? I stand and can repeat to convince other RICHARD W. GIAUQUE is President guarantee if you did, Iadies and gen- jurors. Jurors have to reach agreement to and senior partner in the firm of Giauque, tlemen, the defendants would say the reach a verdict. Hung juries are relatively Crockett, Bendinger & Peterson, recog- same thing about you they're saying rare. Therefore, the purpose of closing nized as one of the top 20 specialty trial about the plaintiff: He's "greedy, argument is to give your allies on the jury firms in the nation for its work in antitrust scheming and ungratefuL." and securities litigation. He has tried the "bullets" to argue your cause in the jury This argument appeals to the juror's more than 50 major cases in various room. empathy and common sense, and deflects courts in the United States, including Jurors make decisions early based upon, antitrust, securities fraud, wrongful the defendants' appeal to many juror's and in conformity with, what they already death, products liability, contract actions, native prejudice against a party initiating a believe. Try to use their backgrounds, class action litigation and intellectual civiI suit. In helping the jury identify with knowledge and beliefs to filter and organize property. He has recovered more than your client, it is often useful to personalize what you want them to remember from $140 milion for his plaintif clients. His the pIaintiff and the plaintiff's experiences. your presentation. To help them remember practice is also balanced with a substan- This process can be facilitated by asking the things you want them to remember tial amount of defense work in complex the jury rhetorical questions which imagi- always stress the simple, never the com- commercial matters. natively draw them into your case. plex. Try to isolate the three or four most Use exhibits and demonstrative aids in important things to your case, so that if the your closing. These aids should be large jury forgets everything else, they will comes from a summation in one of my recent enough for the jury to see and should be as remember and use in their deliberation trials: simple as possible. Excess visual informa- those points that can lead them to a conclu- If you were in the plaintiff's position, tion will only detract from your argument. sion in your favor. In deciding upon themes those are the very questions you would Using photographs of witnesses who have which you wil use, reference to modeI jury have asked. And you wouId have been called, along with a few words on a instructions can be heIpful, particularly walked away feeIing warm and com- chart for emphasis can be very effective. with the knowledge that, at the end of the forted by the assurances of the defen- An overhead projector is an effective tool, trial, the fact that a judge uses the same Ian- dant. And if the defendant hadn't made as are some of the newer computer and guage that you have used in trying your those promises to you to protect your laser disc techniques. Use a mix of visuals. case, and in your closing argument, can interest, you would have done the same The importance of using visual aids with have a powerful effect on the jurors. thing the plaintiff did. Despite the fact your oral presentation cannot be overstated. Above all, attempt to persuade the jury that he had spent a lot of time with that We learn 10 percent from what we hear and to identify with your client. The following company, he was starting to question 85 percent from what we see. We retain

November 1995 43 10 percent of what we read, 20 percent of refrain should not be dictated by the melody verdict for the plaintiff. Your commitment what we hear, 30 percent of what we see, sung by the defendant. Your closing argu- to the case can be conveyed by emphasiz- and 50 percent of what we both see and ment should anive as a natural, inevitable ing the ways in which a verdict in your hear. H. Stern, Trying Cases to Win 121 close to the course of your arguments, and favor comports with broader notions of fair (1991). the evidence you have presented during triaL. play and justice. These should be discussed I Establish themes in your opening argu- An attorney is given considerably more in simple, forceful Ianguage using specific ment, ring changes on those same themes latitude in closing, than in an opening state- facts of the case and applicable Iaw. As in opening statement, begin strong and end , during the course of trial, and bring home ment, where the emphasis is on "what the those themes in your closing. Effective jury evidence wil show," rather than your inter- strong. Avoid technical language or jargon. pretation of that evidence. In closing, you Speak in the common parlance of the jury. ¡ technique involves telling the jury what you are going to do, then doing it, and then may fully argue the case from your client's telling them you did it. Therefore, in clos- perspective. You should refer to the evidence EXEMPLAR ARGUMENT ing argument, counsel should focus on the in the case, as well as inferences and deduc- Very recently, I had the opportunity to same central themes used in opening argu- tions you believe the jury should make from hear a dynamic closing argument given by ment, using events that happened during the evidence. But be careful, when attacking one of my co-counsel, Richard Alan ArnoId the trial to buttress the argument. Show the credibility of the witness, do not assert of Miami, a very effective antitrust trial jurors exhibits, read transcripts or use your own opinion as to credibility, or to lawyer. The transcript of portions of his actual witness statements from the tran- imply that you are substituting your opinions closing argument, along with portions of scripts, if avaiIable. Stress that you proved for those of the jury. my rebuttal argument, both on behalf of the what you said you would prove in opening Finally, your sincerity and commitment plaintiff, show how both of us continued to statement. Stress that your opponent cannot are just as important in the closing as in the deveIop a common theme during each deny certain facts that you were able to prove. opening statement. If the jury believes that phase of the closing argument. In a recent case over disputed pension you have "shaded" the facts, or used "a MR. ARNOLD: Good morning. benefits, I stressed in closing the undis- Iawyer's trick" to deceive them, their antag- After five weeks of testimony, we have puted facts that the plaintiff had been onism toward you may counterbalance any demonstrated that there was a conscious instrumental in the success of the company sympathy you have been able to create on commitment to a common scheme to which now was attempting to shortchange behalf of your client. I restrain advertising in the infant formuIa him. The plaintiff had given up a highIy market in the United States. That conscious profitable job offer in reliance on the defen- commitment to a common scheme is a con- dant's representations that his pension spiracy in restraint of trade. The effects of that are to keep infant for- wouId be secure. These themes were estab- "Establish themes in your lished in our opening, emphasized during mula shrouded in a medical mystery and to trial, and featured in closing. If there is an opening argument, ring changes prevent effective competition from con- exhibit that further substantiates a thematic on those same themes during the sumer-oriented companies and to shieId point, tell the jury about it and even better, course of trial, and bring home those anti-competitive pricing structures that cause overpayment through lack of price show the jury. themes in your closing." In many longer triaIs these days, jurors competition for infant formula products. are allowed to take notes throughout the Now, I'm going to go through the evi- triaL. It is important that your strong points dence as we presented it concerning this have been clearly made, and noted by the conscious commitment to a common jurors. As plaintiff's counseI, with the "Iast scheme. The conspiracy is a group of inter- With respect to focusing the themes of word," don't be bashful about the damage related activities. It's not the facts that are the case, the pIaintiff is given a distinct claim you are making. Spell out clearly what all put in a box, each in a single box, but advantage. Initially, the plaintiff is allowed you want for your client. Too often, plain- these are facts that interrelate. to go first, and thus, may establish the dom- tiff's counsel tread lightIy in this area, and all You can't look at each fact and then inant tone, and inflection of the case. In too often they pay a price for doing so. If the wipe the slate clean and then go Iook at the closing, the pIaintiff's counsel has the last defense has emphasized how "speculative" next fact and wipe the slate clean. You Iook word (apart from the judge) before the jury your damage numbers are, point out that it is at them, how they interrelate, and how they retires, and, thus, a chance to leave the final not the pIaintiff's duty, in a commerciaI case - when you put them all together, they impression guiding the jurors during delib- for instance, to prove damages with "mathe- lead to the inevitabIe clear conclusion that eration. Here, a strong appeal to themes matical certainty," and that, as a matter of there was a c9nscious commitment to a which have already been engraved in the law, the risk of uncertainty in measuring common scheme to control advertising in jurors' memories can determine the out- damages falls on the wrongdoer. the infant formula market in the United States. come of a triaL. Be sure to thank the jurors for their time, Now, the best analogy I can think of on In rebuttal, avoid the temptation to patience and pubIic service. It may be effec- looking at how these facts interrelate is - answer questions that were posed by your tive to emphasize the importance of their you take a bowl of vegetabIe soup. opponent in his argument. This is fighting function, and to touch upon the broader ends, Vegetable soup has ingredients in it: carrots the battle on your opponent's turf. Your particularly those that wil be served by a and onions, potatoes and broth. It all turns

44 Vol. 8 No.9 * * * * out to be soup. room and somebody there with a video Now, a conspiracy is like that. It's an What we've suggested is that when a camera. But in this case, there is direct, not ingredient here and an ingredient there, but medical society and a group of drug compa- circumstantial, evidence of numerous meet- when you look at the whole overall effect, nies get together and put a stranglehold on a ings. you see this is a conspiracy, just as the business, that the American free enterprise (After reviewing evidence supporting recipe for vegetable soup leads to vegetabIe (system) allows peopIe to come in and break Carnation's position, including three soup. through that. That's how consumers benefit. exhibits, the rebuttal argument closed as Now, if you serve vegetable soup to They get that opportunity. And the antitrust follows.) someone and they were trying to convince laws are the only barrier against these kinds You will be instructed that the focus of you that this, in fact, is not vegetable soup, of conduct. And the antitrust laws are concern in an antitrust case is whether the they would probably do it by taking a spoon designed to protect consumers. And the only practice or conduct being challenged has and reaching into the soup and pulling out a people that can put the life blood into the restrained trade. Under the antitrust laws, a carrot and saying, "This isn't soup; it's a antitrust laws are the people, the jurors in the practice that restrains trade cannot be justi- carrot," and setting it on the side. And then jury system, and that is where the burden fied by showing that practice serves some they reach in again and say, "This isn't falls to you. other social goal, such as the goal of soup; it's an onion," and set that out on the Now I appreciate very much your atten- advancing public health. This whole breast- side and go through the entire ingredients tion. And I'm sorry that I don't have any feeding smokescreen is not a defense as a and then look in the bowl and say, "This more time, but I have taIked too much, but I matter of law, ladies and gentlemen. isn't soup; it's broth. There's no vegetable thank you. And in a few minutes or this after- With respect to damages, you will hear soup here." noon, Mr. Giauque wil have an opportunity instructions on the law that the risk of That's the danger if you take a conspir- to get back up and talk to you about a few uncertainty falls upon the wrongdoer; that acy and start taking it apart piece by piece. more things. the plaintiff in an antitrust case is not These facts all completeIy interreIate, and But we need to take care of the enforce- required to prove its damages with mathe- when they are put together and judged as to ment of the antitrust laws. The only way it matical precision or certainty. All we can history and intent, it wil be clear that there can be done is for a company like Carnation do is make a reasonable estimate of dam- was a conscious commitment to a common to stand up, come to court and put its faith on ages, and that's all we are required to do. scheme to control advertising in the infant the line with a jury of citizens that can put We're attempting to calcuIate the perfor- formula market. life into the antitrust laws. mance of Carnation as if they had operated * * * * Thank you. in the world quite different from that facing We're trying to compete in.a market- THE COURT: All right. I thank you, them; that is, if the people had not been place where there is 90 percent of the mar- CounseL. engaged in collective activities to interfere ket share held by two companies. We're * * * * with their entry. * * * * trying to come into the marketplace with a THE COURT: Mr. Giauque, is there product that is designed to improve the rebuttal? We ask you, ladies and gentlemen, to position of mothers. It gives them an oppor- MR. GIAUQUE: Yes, your Honor. render a verdict in favor of our client, tunity to buy formula at a time when We have some time constraints now, and Carnation, to find that the defendants they're weaning their babies, a formula that I would like to address directly only three reached an understanding collectively that you'll see later on in the studies tastes bet- issues because of those restraints, which are restricted the way infant formula is mar- ter, a formula that's cheaper and a formula the claims of the A.A.P. and (Company A) keted in the United States, and that they that is every bit as good nutritionally as through their counsel, that there was no con- collecti vely interfered with Carnation's products that were on the marketplace. spiracy or combination; that is, that they attempt to enter this market. We felt this product would be in a posi- acted unilaterally and independent. And we ask you to employ your collection to break through that stranglehold that Secondly, the marketing mistakes; that is, tive common sense and return a verdict for these companies had on the infant formula Carnation was not hurt or kiled here; that it our client in this case. market that they achieved through this con- committed suicide. Ladies and gentlemen, there is an old trol of the medical detailing system. And finally, the alleged weaknesses of proverb where a young boy is holding a (Mr. Arnold then reviewed the evidence plaintiff's damage claims. small bird in his hand and he's trying to tending to show improper collaboration I listened carefully to the arguments of fool an elderly man, and he says, "Is the between the two companies.) defense counseL. And it is as if the defendants bird dead or is it alive?" And the wise old Once again, this is all designed, it's a had nothing whatever to do with Carnation's man knows that if he says alive, the boy coordinated effort, a series of meetings difficulties in entering this market. There is will squeeze the bird dead; if he says it's together. Don't wipe the slate clean after one thing that's expectable in a case like this; dead, he'll release it. So the old man says, each meeting and say, "Well, gee, they just and, that is, that people who get together col- "I don't know. I only know that it's in your got a letter here, that's all; they have noth- Iectively to impair somebody else's ability to hands." ing else going on." This is a letter that compete deny it, and they usually attack the This case is in your hands in the same comes after a series of meetings, everyone party who has been the victim. sense. Release competition to freedom of which was designed to stop Carnation's But there is something very unusuaI in here. Don't squeeze it dead. Thank you advertising. this case. You don't find conspirators in a ladies and gentlemen.

November 1995 45 Defendant's Closing Statement

By David K. Watkiss

POINT OF VIEW the jury logical arguments to use in the jury The following initial comments are set room which hopefully wil have some pos- forth to let you know what I have come to itive effect on the jurors who are not believe after representing both plaintiffs friendly. That, I submit, is all a defense and defendants for some 45 years and the counseI can reasonably expect to do in a questionable basis of my views on a closing statement. "Defendant's Closing Statement": COMMON DENOMINATORS (a) The trial is a four-phase, educational process with the voir dire, opening state- There is no other phase of a trial where a ments, evidence presentation, and finally lawyer's technique is more personalized than in a closing statement. However, I the closing statements. (b) A good defense counsel is a good believe most will agree that there are cer- teacher, not a preacher. tain common denominators essential to all good defense closing statements: (c) For a defense counsel, the art of persuasion is indeed a gentle art and counsel (a) First and most important is sincerity. must appear fair-minded and compassion- Be yourseIf, serious and courteous, empha- ate. While we have some colorful and flam- sizing your main points with feeIing in a natural conversational delivery, personaliz- boyant triaI Iawyers for the plaintiff, they DAVID K. WATKISS has practiced as a ing your client and your case. Never refer to are rarely found for the defense. trial lawyer for 45 years, representing your client as the defendant and make sure (d) The good defense lawyer influences both plainttffs and defendants in varied your client is present throughout the triaI, a jury best with the careful preparation and areas of law, including antitrust, aviation, presentation of the case, and by establish- dressed appropriately. bankruptcy, construction, corporate, ing the impression that the defendant and (b) Fairness and credibility are also criminal, energy, malpractice, mining, counsel are honest, fair and responsible. important. Don't overstate your case or professional liability and products liabil- underestimate the intelligence of the jury. (e) A good closing statement is a clear, ity. He is a Fellow in the American credible and persuasive explanation of the Many trial lawyers inform the jury that they College of Trial Lawyers, the defendant's case. A jury that doesn't under- will not intentionally misstate the evidence stand your case can't return a verdict in International Academy of Trial Lawyers or knowingly mislead or confuse. Their your favor. and the International Society of actions will speak louder than their words. Barristers. He is also a member of the (c) Courts impose time limits on argu- INTRODUCTION Utah, District of Columbia, American and ment so your summation must have a tight There are differing views on the impor- Federal Energy Bar Associations. structure, focusing on the key facts and the tance of a closing statement. Some trial law which has established the central theme lawyers beIieve that the summation is the of your case with jury instructions the basis keystone or crown of the case on which all won or lost during the proof and not by jury of the theme. This theme was outlined in other associated parts depend for maximum selection, the opening statement or the clos- the opening statement and developed effectiveness. This is reflected in a recent ing statement. As the witnesses speak and the throughout the triaI by using words and

book by a well-known trial lawyer entitl~d evidence is presented, jurors' attitudes are concepts from the court's anticipated "How to Argue and Win Every Time." being formed, they are judging the witnesses, instructions in the questioning of witnesses. Others think that a case is won or lost when believing or disbelieving, and taking sides. (d) Discuss liability instructions and a jury is selected. However, the conven- What then is your function and objective instructions regarding defenses with evi- tional wisdom is that most jurors make up in your closing statement if it is unlikeIy that dence examples. Key instructions should be their minds by the end of the opening state- you can persuade anyone who has formed a emphasized with reasons why such instruc- ments and then pick out the evidence that judgment against you? Your persuasive sum- tions are favorable to your client.! In a neg- supports their position. I personally believe mationof your client's position through the ligence case, make clear that the slightest that the best a defense counsel can do is application of logic and reason to the evi- degree of fault does not amount to negli- select ajury that might have some tolerance dence can give jurors a basis for a reasoned gence for the test is not what a perfect perfor the defendant's case and that it will be discussion of the issues and your friends on son would do but what an average, ordinary

Vol. 8 No.9 46 person would do. All the Iaw requires is Iawyer may not state a personal opinion as to into questions that plaintiff's counseI must that the defendant act as a reasonabIe, pru- the credibility or motives of a witness. respond to in his or her repIy. While some dent person. Carefully explain speciaI ver- of plaintiff's arguments or questions may dicts so that the jury understands each step, PAIN AND SUFFERING need to be addressed, defense counsel as an its consequences and the answers you want Many lawyers find it difficult to argue effective advocate must use a good part of from the evidence. pain and suffering. How defense counsel the jury's span of attention clearly estab- (e) Do not wait until closing argument to handles this matter is determined in large lishing the strong points of the defense deaI with prejudicial matters. First impres- part by the way the plaintiff presents and firmly in their minds. sions are hard to overcome and prejudicial argues it. Unless the plaintiff overstates or Frequently, certain key sections of testi- facts or circumstances, particularly imma- misrepresents the facts of plaintiff's pain and mony are criticaI and should be transcribed teriaI ones that should not affect the jury's injury, there really is not much for the prior to closing so that this actual testimony judgment, should be handled early in the defense to do. While a defense counseI must can be read exactly as it was said on the case. A Motion in Limine is one way to exhibit some sympathy and compassion, witness stand. You can aIso graphically handle such a potential probIem and another there is little he or she can say when facing demonstrate your points to the jury by is to present the fact in the voir dire and true pain and suffering and onIy hope that the using trial exhibits. The jurors' attention obtain some positive commitment from the jurors will not be swayed by sympathy and should be focused upon the reaI issues in jury which can be recalled in summation. will exhibit a reasonable tolerance for some- the case whiIe at the same time removing (f) Do not memorize or read a closing one eIse's pain and trouble. from their consideration facts on which statement. An outline or checklist may be there is no conflict. Defense counsel must useful, but defense counsel shouId not be remain flexibIe so that he or she can rebut committed to precise Ianguage. Summation the plaintiff's arguments and devote most must be spontaneous, for nothing bores a "The jury has a restricted of the closing statement to simpIifying the jury more than to have counsel read from issues and evidence and reinforcing the trial notes or shuffe through papers in the tolerance for argument. For case theme of the defense. middIe of an argument. this reason, closing statements should be as brief as possible." SHORT AND SIMPLE RIGHTS AND WRONGS The jury has a restricted tolerance for The right to argument has been recog- argument. For this reason, closing state- nized as an essential function of trial counsel ments should be as brief as possibIe. Some and one to which trial counsel should be think an effective conclusion is thanking Defense counseI in a serious injury case afforded broad latitude in referring to the the jury for their time, patience and finally must address the natural sympathy that a jury evidence presented, expIaining its meaning again reminding them of the responsibility will have for the plaintiff by suggesting that and arguing its significance to counsel's they have in rendering a just judgment. But 2 while anyone couId be expected to have sym- theory of the case. However, it is clear that the to achieve such a result, you must have pre- pathy for the plaintiff, it is their duty as jurors court has the discretionary power to reason- sented your case as a simple, straight-for- to lay aside such feelings and under the facts ably controI and limit closing argument.3 ward story supported with a few strong, of this case, return a verdict for the defense. Unfortunately, some courts today understandable and persuasive arguments. Ths challenges the panel to be courageous and unduly restrict closing summation, failing Again, a jury that doesn't understand your can be effective. Plaintiff's counsel wil, how- to recognize that it is necessary to tie case is unlikely to return a verdict in your ever, counter that sympathy is not the basis together all of the preceding phases of com- favor. A defendant's closing statement has for plaintiff's claim and that he or she is in munication and persuasion, particuIarly in been successful if the jurors are left with court for full and just compensation, not close or technical cases. the conviction that both defendant and sympathy. While counsel should have broad Iati- counsel have been completely fair and tude in argument subject to the court's rea- REBUTTING PLAINTIFF'S OPENING forthright. If they are convinced of the sonable control, there are certain ethicaI integrity and sincerity of your cause, it wil It is to be expected that pIaintiff's counseI improprieties which counseI shouId not receive serious consideration. wil make a strong opening argument and try commit to avoid the risk of reversible error. to put defense counsel in a defensive posture I Fed. R. Civ. P. 5 I requires the fedcral court to inform thc Some of these are imputing improper counsel of its proposed action on the requested instructions requiring the rebuttal of pIaintiff' s points and behavior of other counsel; appealing to prior to argument to the jury. This is intended to permit coun- not the assertion of the defendant's best sel to argue intelligently bascd upon the evidence, within the racial, national or religious prejudice; or applicable law as the court will give it to the jury. Arguments points. Some plaintiff's counsel believe it to appeaIs based on the wealth or poverty of in Utah state courts are made after the court instructs the jury be effective to challenge defense counseI to and informs counsel of its proposed course of action upon one of the parties. Counsel also cannot state requested instructions prior to instructing the jury. See Utah R. answer a number of questions. While the personal knowIedge of disputed facts or Civ. P. 51. response required to the pIaintiff's argument 2Joseph v. W.H. Groves Latter Day Saints Hosp.. 7 Utah 2d unsupported inferences, indicate that a jury cannot be planned in advance, it can be antic- 39,318 P.2d 330 (1957). appeal after remand. io Utah 2d 94, award is exempt from taxation or inject the 348 P.2d 935. ipated. Defense counseI shouId not attempt existence or non-existence of insurance. 3Harmon v. Sprouse-Reitz Co.. 21 Utah 2d 361. 445 P.2d 773 While the credibility of witnesses is a to answer every argument made by the plain- (1968). tiff but should focus on the most telling proper subject for the closing statement, a points and try to turn some of these points ¡

November 1995 47 7 ii IÎ

Post- Trial Motions

By H. James Clegg

i For most of us, post-trial motion practice trial or amendment of judgment: is far less exciting than the trial itseIf. i. IRREGULARITY IN PROCEED- Usually the movant is the losing party at INGS BY WHICH A PARTY WAS PRE- trial and faces an uphil battle to snatch vic- VENTED FROM HAVING A FAIR tory, or at least a second chance, from the TRIAL. jaws of defeat. In addition to the presump- 2. JURY MISCONDUCT: COERCION tions favoring the jury verdict, one must OF JUROR, RESORT TO CHANCE, battle the inertia of the trial court's mind; in BRIBERY. , I! their hearts trial judges don't really want to Jury misconduct may be proven by aff- retry cases any more than you want to read davit of anyone juror, but opposing affi- a novel twice. In the first place, they ratio- davits may aIso be received. Any juror who nalize that a litigant is not entitled to a per- gives an affdavit is subject to oral cross- fect trial, only a fair one. Secondly, their examination or examination by the court. calendars are already packed with new A jury's verdict may be impeached only cases for trial and don't allow a lot of room by showing of bribery or resort to chance. for re-trials. Lastly, as with summary judg- Misunderstanding of the law, confusion or ment motions, they know that it is hard to the disregarding of facts or law are insuff- sustain an award of new trial or JNOV and H. JAMES CLEGG, a past president of cient, even if proven, to undermine the jury appellate courts are likely to question their process.2 sanity for having tolerated such foolishness the Utah State Bar and the Salt Lake In state courts, a quotient verdict is and making them work. impeachable as one based on chance.' Thus, the movant generally has hat-in- County Bar Association, is also a Fellow Federal courts do not so hoId. Chief Judge hand and heart-in-throat when he or she Winder, for one, refuses to give the state of the American College of Trial Lawyers argues a post-trial motion. court instruction against quotient verdicts where he served as State Chair. His prac- and I had one case where the jury broke an RULE 54(D)(2) 11- i deadlock by that device. I suspect that MOTION FOR AWARD OF tice with the firm of Snow, Christensen & this is one reason there are so few hung ATTORNEYS' FEES juries in federal civil trials despite the Martineau concentrates on product liabil- The exception is when the successful requirement that all twelve jurors be unani- party moves for award of attorneys' fees. ity, environmental torts, drug and medical mous in their verdict: They unanimously Be aware that the federal rule requires that agree in advance that the quotient wil be attorneys' fees issues be handled by post- device liabilty and insurance defense. the verdict of each of them. trial motion unless substantive Iaw permits 3. ACCIDENT OR SURPRISE their resolution at triaL. Such a motion must NOT AVOIDABLE BY ORDINARY be filed within fourteen days after entry of question that the jury did not include them in PRUDENCE. judgment and state the amount of fees its verdict. Failure to object promptly constitutes a claimed and the fee basis. While the losing waiver.4 If the evidence constituting the party may challenge the right to recover RULE 59 "surprise" could have been obtained easiIy fees or the amount to be awarded, local rule NEW TRIAL, through discovery, a motion does not lie.' can permit dispensing with extensive evi- AMENDMENT OF JUDGMENT Surprise may not be asserted for the first dentiary hearings; further, the issue may be The wording of post-trial motion rules dif- time on appeaL." Ii referred to a magistrate or special master fers between the state and federal versions. 4. NEWLY DISCOVERED EVI- for resoIution. While I have not reviewed the history of the DENCE WHICH WAS NOT DISCOVER- AIthough the state court rule does not divergence, the practitioner should carefully ABLE DESPITE EXERCISE OF contain simiIar language, the practice is review the pertinent rule before filing a post- ORDINARY DILIGENCE. similar in streamlining the evidence. trial motion. Note that Rule 59, U.R.C.P., is 5. EXCESSIVE OR INADEQUATE The wise lawyer expressIy reserves fee much more detailed than the federal rule and DAMAGES APPEARING TO HA VE issues by jury instruction so there is no gives only the following grounds for new BEEN GIVEN THROUGH PASSION OR

48 Vol. 8 No.9 PREJUDICE. Judge Jenkns, and perhaps other federal tral ment against state or federal governments. The granting of additur or remittitur is judges in this distrct, follow this same rule. proper, giving the other party the option of THE SINE QUA NON a new trial, RULE 50(B) Despite the many technicaI issues that The amount of damages is ordinariIy a MOTION FOR JUDGMENT JNOV could be claimed as error and which wouId jury question unIess so high or Iow as to Note the wide variance in Ianguage delight PhiladeIphia theorists and bar exam evidence that it was awarded as a result of between the state and federal versions of this writers, it is usually imperative that the trial misunderstanding, passion or prejudice.s ruIe. For exampIe, in 1991 the federal rules judge be convinced that the verdict was Crookston v. Fire Ins. Exch., 817 P.2d abandoned the words "directed verdict" in simpIy not fair or it wil not be set aside. 789 (1991), estabIished guidelines for the favor of "judgment as a matter of law" The moving party's attorney can argue reIationship of actual to punitive damages whether granted before or after the return of technicaI defects until the cows come home and requires the trial judge to make detailed the verdict. but, unless he or she convinces the triaI and reasoned articulation for concluding (To make the distinction between pre- and judge that the verdict was next to uncon- that an award outside the presumptive post-verdict motions, I will use the term scionable, it wil stand. The order of impor- bounds wasn't excessive. "directed verdict" here.) tance is to attack its fairness and then find a 6. INSUFFICIENCY OF EVIDENCE It is essential to remember that a ruIe to support relief rather than woodenIy TO JUSTIFY THE RESULT. motion for directed verdict must be made citing rules and cases. The triaI court shouId review the evi- at the end of the opponent's evidence or Timing may be important. If your argu- dence and all reasonabIe inferences in a the right to move for JNOV is forfeited.16 ment turns on evidence and the judge light favorabIe to the jury's verdict.9 The The only exception occurs when there is appears surprised or disturbed when the same standard prevails for deniaI of motion plain error shown in the record and the fail- verdict is read, make your motion orally as for new triaI or for JNOV.1O ure to grant a JNOV wouId create a miscar- soon as the jury Ieaves the courtroom. It The triaI court may modify an unjustifi- riage of justice. 17 wil never sound better than before the able verdict and the party adversely In the unusual situation where a JNOV is judge starts rationaIizing that the result isn't affected may either accept the modification granted, the trial court shouId aIso indicate really that bad. or take a new triaI; he cannot compIain that whether it wouId grant a new trial if the Prayer may aIso help; it's never been he has been deprived of his right to jury JNOV ruling is reversed. proven to hurt. It is probably best to pray trial if the court so ruIes. ii As a strategic matter, do you want a new before you reach the rostrum or your A motion to alter or amend the judgment trial if you can't get or hold onto a JNOV? In silence may be construed as either a focal must be fiIed within 10 days. my quotient verdict case, the jury verdict, seizure or lack of anything meaningful to 7. ERROR IN LAW. whiIe unexpected and distasteful, was for a say. Neither is helpful to your cause. The federal rules do not enumerate the Iow amount and the client permitted me to And good luck! request onIy JNOV, not a new triaL. grounds for granting new triaIs or JNOV s 1 Tangaro v. Marrero, 373 P.2d 390 (1962); Moon Lake Elec. but reIy upon common law grounds. Assn v. Ultrasystems W. Constructors, Inc., 767 P.2d 125 A trial court may grant a new trial on its STANDARD FOR (Utah Ct. App. 1988); Schlinder v. Schlinder, 776 P.2d 84 APPELLATE REVIEW (Utah Ct. App. 1989). own motion but must do so, if at all, within 2Groen v. Tri-O, Inc., 667 P.2d 598 (1983). 10 days after the entry of judgment. The appeal court uses the same standard 3Day v. Panos, 676 P.2d 403 (1984). as does the trial court in reviewing post-trial 4Chournos v. D'Agnilo, 642 P.2d 710 (1982); Jensen v. STANDARD FOR REVERSAL OF motions: the evidence is examined in the Thomas, 570 P.2d 695 (1977). AWARD OF NEW TRIAL light most favorabIe to the Iosing party; if 5Anderson v. Bradley, 590 P.2d 339 (1979). 6Meyer v. Bartholomew, 590 P.2d 558 (1984). While foIkIore hoIds that the granting of there is a reasonabIe basis in the evidence 7 a new triaI is totally discretionary, that is and its inferences to support the verdict, the Utah State Road Comm'n v. Johnson, 550 P.2d 216 (1976). IS Stated another 8paul v. Kirkendall. 261 P.2d 670 (1853). JNOV cannot be sustained. not quite true. There must be at Ieast sub- 9Deats v. Commercial Security Bank, 746 P.2d 1191 (Utah Ct stantial evidence justifying the movant's way, there must be no substantiaI evidence to App.1987). position.12 This issue may be reviewed by support the verdict.19 10Hansen v. Stewart, 761 P.2d 14 (1988). interIocutory appeaI provided an appellate Stated yet another way, a JNOV is sus- 11Bodon v. Suhrmann, 327 P.2d 826 (1958). court is wiling to accept it. tainable onIy if reasonabIe minds could not 12Welbnan v. Noble, 366 P.2d 701 (1961); Randle v. Allen, reach a different conclusion.20 The trial court 862 P.2d 1329 (1993). Granting a new trial is largely a matter 13"C1ear abuse": Jensen v. Thomas, supra; Lembach v. Cox, of discretion and reversal requires finding may not weigh or determine the prep onder - 639 P.2d 197 (1981); Pusey v. Pusey, 728 P.2d 117 (1986); 13 of abuse of discretion. ance of the evidence.2I "manifest abuse": Schmidt v. IHC, 635 P.2d 99 (1981); Haslam v. Paulsen, 389 P.2d 736 (1964); Page v. Utah Home An untimeIy motion for new triaI must Fire Ins. Co., 391 P.2d 290 (1964). be denied and does not toll the running of RULE 62 14Burgers v. Maiben, 652 P.2d 1320 (1982). the time for appeaL. 14 MOTION FOR STAY OF 15Drury v. Lunceford, 415 P.2d 662 (1966). ENFORCEMENT PROCEEDINGS 16Pollesche v. Transamerican Ins. Co., 497 P.2d 236 (1972). MOTION FOR RECONSIDERATION The federal rule and the state rule gener- 17 Henderson v. Meyer, 533 P.2d 290 (1975). This is not a proper motion and does ally track each other, except that the federaI 18Hansen v. Stewart, 761 P.2d 14 (1988). not toll the running of appeal time in ruIe does not, in most cases, permit a judg- 19Koer v. Mayfair Mkts., 431 P.2d 566 (1967). 20Anderson v. Gribble, 513 P.2d 432 (1973). state courts.IS Judge Benson and Senior ment to be enforced until 10 days after it is entered. Neither allows immediate enforce- 21Finlayson v. Brady, 240 P.2d 491 (1952).

November 1995 49 STATE BAR NEWS

A Notice of Petition Continuing Interim Suspension .. for Reinstatement Garnishments On September 25,1995, The Third Distrct Gary L. Blatter has filed a Petition for The Administrative Office of the Courts Court entered an order placing C. Lee Reinstatement to Practice Law with the announces that amendments to Rule 64D, Caldwell on interim suspension pending the adjudication of the formal complaint. Mr. Fourth JudiciaI District Court, CiviI No. Utah Rules of Civil Procedure, have been Caldwell was convicted of Conspiracy to 940400036. Mr. Blatter was suspended adopted by the Utah Supreme Court with an Defraud the United States Government in from the practice of law on October 21, 199-4, effective date of November 15, 1995. These for violating Rule 8.4(b), Misconduct, of amendments wil provide for a 120 day con- the FederaI District Court for the District of Kansas. The Third District Court found that the Rules of Professional Conduct. tinuing garnishment. A text of the amend- his conviction reflected adverseIy upon the In accordance with Rule 25 of the RuIes of ments has been published in Utah Advance practice of law pursuant to RuIe 8.4(b) and Lawyer Discipline and Disability individu- Reports and wil soon be published in Utah als desiring to support or oppose this Court RuIes Annotated. A text of the amend- involved dishonesty pursuant to Rule 8.4(c) Petition may do so within 30 days of the ments can also be obtained by contacting the of the Rules of Professional Conduct of the Utah State Bar. date of the publication of this edition of the Administrative Office of the Courts. Bar Journal by filing a Notice of Support or Opposition with the Fourth Judicial District Court. It is also requested that a copy be sent ABA In Favor of Bill to Expand Status of to the Office of Attorney Discipline 645 South 200 East, Salt Lake City, UT 84111. U.S. Patent and Trademark Office WASHINGTON, D.C., Sept 20 - The American Bar Association tes- Subcommittee tified before Congress this month in favor of a bil that wil give the U.S. Patent and Trademark Office "operating and financial flexibility similar to Studying that of a private corporation." Recodification Speaking on behalf of the ABA before the House Subcommittee on Courts and Intellectual Property, Donald Dunner, Chair of the ABA's The Utah Legislature has formed a sub- Section of Intellectual Property Law, supported by the provisions of the bil, committee to study the recodification of which include the appointment of board members from the private sector Chapter 3a of Title 78 (Juvenile Courts) and to offer recommendations for needed and a chief executive officer who wil act as a national spokesperson on changes. The subcommittee is working patent and trademark issues. towards the completion of a comprehensive Dunner pointed out that since 1980, when the ABA recommended that technicaI rewrite for the Iegislature's con- the Patent and Trademark Office (PTO) be separated from the Department sideration during the 1996 General Session. of Commerce, "the case for greater operating independence on the part of Sen. Lyle W. Hilyard, Subcommittee the PTO has grown even stronger. The fact that the PTO is now funded Chair, is encouraging input from practition- entirely by user fees is a development that argues most strongly for such ers and others who have knowIedge and independence." expertise in this area of the Iaw. In addition to Chair Hillyard, the sub- Under the proposed bil, a chief executive officer wil be appointed by committee is comprised of Sen. Robert C. the President to head the PTO for a six-year term and serve as a chief Steiner, Rep. R. Lee Ellertson, Rep. Steve spokesperson on patents and trademarks. The bil also calls for an active Barth, Hon. Arthur G. Christean, Hon. J. board of directors that includes members from the private sector with expe- Mark Andrus, and Ms. Kim Riling, Esq. rience in patent and trademark law. Any person desiring a schedule of meet- The ABA also testified on the draft of an Administration bil that ings or meeting materials should contact would establish a new Under Secretary of Commerce for Intellectual Ms. Esther Chelsea-McCarty or Mr. Property, under which all patents would be granted and trademarks regis, Kim S. Christy at the Offce of Legislative Research and General CounseI, 436 State tered, and convert the PTO into a government corporation called the "United Capitol, Salt Lake City, Utah 84114 or at States Intellectual Property Organization." , 538-1032. The cost of meeting materials According to Dunner, the Administration bil does not provide "suffi- is $10. cient authority and independence to the Corporation and its CEO, and we question whether its enactment would constitute an improvement over the present system."

50 Vol. 8 No.9 Last Chance Speakers Say: Ethics Seminar There's Much More to the Law Than OJ

Even if you have your three hours of (Salt Lake City) The best way to avoid has been initiated under the direction of the ethics credit you won't want to miss legal problems is through awareness and Hon. James Z. Davis, Utah Court of UTLA's ethics seminar, Friday, December understanding of laws and procedures. AppeaIs. 1, 1995. The seminar features three out- Because this isn't aIways easy in our com- "Throughout the state, Utah attorneys standing, accomplished speakers: Charles plex society, the Utah State Bar has estab- are prepared to talk to community, civic Thronson, Parsons Behle and Latimer, will Iished a Speakers Bureau to help educate and speciaI interest organizations on a wide discuss "Ethics in Advertising"; Linda F. peopIe about our system of justice. variety of topics and to help educate people Smith, professor of law, University of Utah Iawyers are available to speak on a on the benefits of the U.S. adversary sys- Utah, will present, "Conflcts of Interest - wide variety of issues including: arbitration, tem, roIe of the Judiciary, and principles An Update"; and Laura M. Gray, chiId custody, consumer issues, criminal Iaw, followed by attorneys as officers of the Alternative Dispute Administrator for the costs of legal services, debtor-creditor prob- Court," Mr. Haslam said. U.S. District Court for the District of Utah, lems, landlord-tenant, famiIy disputes, wils Any organization wishing to invite an will address, "The Ethical Issues II and estates, and securities issues. attorney to taIk on a legaI topic shouId con- Mediation." Ms. Gray's presentation wil According to Utah State Bar President tact Maud Thurman at the Utah State Bar. also discuss the federaI court's alternative Dennis Haslam, more than 250 attorneys are There is no charge for the service. dispute resolution program. participating in the Speakers Bureau which The seminar is from 9 am until noon at the Law and Justice Center, 645 South 200 East, in Salt Lake City. The cost is $55 for Electronic Evidence: UTLA members and $75 for non members. A Guide to Courtroom Use of New Technologies Call 531-7514 to make your reservation. (Rochester, NY) - Electronic Evidence nical information on video and audio provides a technical bridge for attorneys recordings and the current case Iaw. For Need More CLE involved in complex issues involving audio example, the Federal Rule of Evidence sec- and video evidence. This new book from tion provides an update on the current Before the Lawyers Cooperative Publishing offers a admissibility of video depositions in lieu of December 31, 1995? thorough, comprehensive review of the uses expert witness appearances. A section on of audio or video recordings in the legal the recent amendments to the Federal Rule Mediator Training - Levell environment - including evidentiary, techni- of Civil Procedure covers the issues con- 4-Day Course caI and forensic aspects that are specific to cerning the use of video depositions and the electronic medium. Electronic Evidence other applications of electronic recording in December 1,2,8,9 is a comprehensive treatise that analyzes how the court system. January 12, 13, 19,20 to use, present and work with electronic Practitioners get an up-to-date review of 27 Hours of CLE recordings in the courtroom. how to present information using eIectronic (including 2 hours of Ethics) media as well as thorough treatment of the Author Jordan S. Gruber is a former prac- practical limits of using forensic experts Faculty ticing attorney, president of LexTech and practical advice on the realities of James R. Holbrook, Esq. Consulting in Menlo Park, Calif., and con- using audio or video recordings as evidence Cherie P. Shanteau, Esq. tributing writer to WIRED magazine. - its advantages, disadvantages, and inher- Nancy W. Garbett, M.Ed. Gruber's book provides attorneys with an in- ent complications. The author offers many depth analysis of both audio and video evi- different types of practice tools, such as 'The Effective Mediator" training is spon- dence as well as practical guidelines on checklists, guidelines and model discovery sored by Transition Management, Inc. admission into evidence, discovery, and examples. For information on this course and other defense considerations. Plus, Gruber pro- future courses, pIease call: vides groundbreaking insight to such contro- Lawyers Cooperative Publishing is a (801) 272c9289 (or Fax 272-9598) versial topics as: leading provider of Iegal analysis, state and federal case and statutory Iaw, practice aids . V oicegram Evidence and forms-in both print and electronic for- . Video Editing mats, including LawDesk and CaseBase . Expert Witnesses CD-ROM products. For more inform a- . Audio Dubbing tion,call Lawyers Cooperative Publishing . Image Manipulation at (800) 254-5274. . Model Discovery Electronic Evidence contains the latest tech-

November 1995 51 Æ~~ U! ,. .~~'L S"., ~n-:~"'. Hi.i i"": ., G/'.... ,...,.. .'.' .-;;. D'i.,.,.. ,.,: ". ..."'. :l..~¡, lU''tWßØrm(fr~~ j. ii 'AI.. ¡) ...lULl ... ','.A...... :¡lfn..lb';' ll4lJC ¡ l;1I . ..;lr0I.PI, ,. ¡ i :eDeiJI¡~ ~~1,t )1 ~:OW ,ftV¡~.) ~le ~/ZEO~

u.s. wes Cellular MaerCrd Group Discounted cellular air time and services Kessler Financial Services offers a MasterCard with an APR of 15.65%. are offered with their Corprate Rate. ii For information on different features, . For details call 1-800-847-7378. restrictions that may apply or to sign up with u.s. West, call Tod Southwick at Mazic Kigdom Club 631-6000 in Salt Lake City, or 547-7304 This Program offers reduced prices on Seasonal in Ogden. and Vacation packages at select Disney Resort Hotels. Disabilty /Wc Insurance . For information contact Lyncttc Lib at The Bar has negotiated a 23.5% premium 531-9077. discount through Standard Insurance and Paul Revere. ITC Long Disnce .. For information contact Sctt Buic at Office or home long distance needs can bc met 273-0160. with ITC Long Disnce. íi For a cost comparison, additional Malpratice/Libilty information or to participate, call 531- This program is monitored by our Professional 9230 or 1-800-999-6083. Liability Committee and advised by Roll Hudig Hall. Vantagc Travel 'ji For information call Rolls Hudig Hall at Vantage Travel offers vacation packages to 488-2550. members of the Bar, 3-5 times a year. ii For travel dates and information call Aiborne Expre 1-800-833-0899. Bar members pay only $9.25 for a standard eight ounce Overnight Letter Express when shipping a Hert minimum of 10 shipments monthly. Additional Car rental services with discounted rates. savings are available for using Airborne's Drop 'íi For reservations call (800) 654-2200 and Box. give the Utah State Bar COP card 'ji Call Airborne Express at (800)642-4292 #150980. and give the Utah State Bar Disunt Coe Number "0401220200" to obtain your Health Insurance free personalized supply kit. The Bar coordinates a group health program through Blue Cross/Blue Shield of Utah. MBNA Goldopton Accunt ii For information contact Wcndy Montaho This is a loan through MBNA Corporation to at 481-6180. con.solidate higher interest loans at a 13.9% APR. "II Call 1-800-626-2760 for details. .. UTAH BAR FOUNDATION Bar Foundation Trustees Present Checks to 1995 Grant Recipients

Tmstees of the Utah Bar Foundation recently presented checks to organizations providing free or low-cost legal aid, Iegal education and other law-related services to Utah residents. In the ten years since it has awarded grants, awards and scholarships, the Foundation has dis- tributed more than $1.65 million. All active Utah lawyers are members and may voluntarily participate in the program which generates funds for grants. The Trustees for 1995-1996 are James B. Lee, Jane A. Marquardt, Stewart M. Hanson, Jr., Carman E. Kipp, Joanne C. Slotnik, Hon. Pamela T. Greenwood and H. James Clegg.

Receiving cliecksfrom Trustees are: (upper left and moving clockwise) Utah Law-Related Education Project Board Chair Kim M. Lulm lind Director Kathy D. DiyerfrolJ Jane A. Marquardt; Utah Legal Services Board President William G. Fowler from Jane A. Marquardt with James B. Lee and Director Anile Milne watching; Legal Center/or People and Disabilities Director Phyllis Geldzahler froii Joanne C. Sloflik; Woiien Lawyers of Utah Chair Monica Whalen Pace and Beatrice M. Peck frOIl Jane Marquardt; Legal Aid Society Board President Stephen C. Bamberger from James B. Lee; Catholic Community Services Executive Director Sister Margo Cain and 1l1lniigratIol1 Program Director Teresa Hensley from H. James Clegg; Utah Legal Services Senior Lawyer Volunteer Program Director MOlY Jane Ciccarello and Ned D. Spurgeon (who began the program two years ago) from James B. Lee. Photo credit: Robert L Schmid

November 1995 53 CLE CALENDAR

LA WYERS & LEGAL ASSISTANTS Time: 9:00 a.m. to 5:00 p.m. PROCRASTINATOR'S PARADISE: IN THE PRACTICE OF LAW: THE LAST MINUTE CLE VIDEO JOINT UTAH STATE BAR Place: Utah Law & Justice Center EXTRA V AGANZA AND LAAU SEMINAR Fee: $140.00 Date: Wednesday & Thursday, Date: Friday, November 10, 1995 CLE Credit: 7.5 HOURS December 27 & 28, 1995 Time: 8:00 a.m. to 4:30 p.m. Time: 8:00 a.m. to 5:00 p.m. (Registration begins at 7:30 a.m., lunch is included) THE ETHICAL ADVOCATE Place: Utah Law & Justice Center Place: Utah Law & Justice Center Date: Friday, December 15, 1995 Fee: Full day = $50.00 Fee: $150.00 for individual Time: 9:00 a.m. to 12:00 noon Half day = $25.00 registration (Registration begins at (Minimum charge of $25.00) $270.00 for joint attorney/ 8.'30 a.m.) CLE Credit: 9 HOURS, WHICH paralegaI team (maximum 2 Place: Utah Law & Justice Center INCLUDES AT LEAST 3 people) HOURS OF ETHICS, Fee: To be determined (please EACH DAY (Please note: A CLE Credit: Minimum of 7 HOURS watch for a brochure to come maximum of 12 hours of in your mail) video CLE Credit can be ENVIRONMENTAL LAW FOR CLE Credit: 3 HOURS ETHICS CREDIT applied toward your CORPORATE COUNSEL AND requirement of 27 hours.) OTHER GENERAL PRACTITIONERS Seminar fees and times are subject to change. Please watch your mail for brochures and mailings on Date: Wednesday, November these and other upcoming seminars for final information. Questions regarding any Utah State Bar 15,1995 CLE seminar should be directed to Monica Jergensen, CLE Administrator, at (801) 531-9095. Time: 7:30 a.m. to 12:00 noon (Buffet breakfast begins at 7.'30 a.m.) CLE REGISTRATION FORM Place: Utah Law & Justice Center TITLE OF PROGRAM FEE Fee: $50.00 general registration, $35.00 for Corporate l. Counsel Section members CLE Credit: 4 HOURS 2.

NLCLE: ETHICS Make all checks payabIe to the Utah State Bar/CLE Total Due Date: Thursday, November 16, 1995 Name Phone Time: 5:30 p.m. to 8:30 p.m. Address City, State, ZIP Place: Utah Law & Justice Center Fee: $20.00 for Young Lawyer Bar Number American Express/MasterCard/VISA Exp. Date Division Members $30.00 for all others Signature add $10.00 for a door Please send in your registration with payment to: Utah State Bar, CLE Dept., 645 S. 200 E., S.L.C., Utah 84111. The registration Bar and the Continuing Legal Education Department are working with Sections to provide a full complement of Jive seminars. Please watch for brochure mailings on these. CLE Credit: 3 HOURS Registration Policy: Please register in advance as registrations are taken on a space available basis. Those who register 1 at the door are welcome but cannot always be guaranteed entrance or materials on the seminar day. EFFECTIVE WRITING FOR Cancellation Policy: Canccllations mnst be confirmed by letter at least 48 hours prior to the seminar date. Registration LAWYERS fees, minus a $20 nonrefundahle fee, will be returned to those registrants who cancel at least 48 hours prior to the seminar date. No refunds will be given for cancellations made after that time. Date: Friday, November 17,1995 NOTE: It is the responsibility of each attorney to maintain records of his or her attendance at seminars for purposes of the 2 year CLE reporting period required by the Utah Mandatory CLE Board.

54 Vol. 8 No.9 ~ CLASSIFIED ADS

three to five years of practice experience. we wil make overhead Iivable for right RATES & DEADLINES Salary range: $2,516.80 to $3,941.60 applicant. Call (801) 486-3751." Utah Bar Member Rates: 1-50 words - monthly. Please send resume to Summit $20.00 / 51-100 words - $35.00. County Personnel, P.O. Box 128 Coalville, Downtown private offces for up to two Confidential box is $ 1 0.00 extra. Utah 84017. Summit County is an E.O.E. attorneys. Great location near court buiId- Cancellations must be in writing. For infor- empIoyer. CIosing Date: November 30, 1995. ings, restaurants, fed-ex office, post office. mation regarding classified advertising, Conference room, reception area, library. please contact (801) 531-9077. Large Salt Lake City law firm is seeking Fax, laser printer, copier, teIephones, Classified Advertising Policy: No one or more experienced patent/intellectual postage meter. Three attorneys in office. commercial advertising is allowed in the property attorneys to head its section in firm. Computer netwörk and Internet. Parking classified advertising section of the Journal. At least five years experience necessary with next to buiIding. Secretarial services avail- For display advertising rates and informa- good academic credentials. Competitive salary able. Call Amy or Craig (i (801) 364-5600. tion, pIease call (801) 532-4949. It shall be and benefits. PIease send resume to: Maud C. 7200 South State area. Nice office and the policy of the Utah State Bar that no Thurman, Utah State Bar - Box 15, 645 access to c~nference room, fax, reception, advertisement should indicate any prefer- South 200 East, Salt Lake City, Utah 8411 1. secretarial, etc. (801) 322-5556. ence, limitation, specification or discrimination based on color, handicap, religion, POSITIONS SOUGHT Prime offce space in Layton Barnes Bank sex, nationaI origin or age. Building. One or two attorneys turn key Utah Bar Journal and the Utah State Bar Tax Attorney, Admitted in PA and UT, LL.M. (Taxational), desires opportunity to operation. Office already has one attorney Association do not assume any responsibiI- on site. Call (801) 546- 1100 and ask for Erik. ity for an ad, including errors or omissions, practice with progressive firm, in any of the beyond the cost of the ad itseIf. Claims for following taxation areas: Corporate Tax Choice office space for rent in beautiful, error adjustment must be made within a Planning, Partnerships, Limited LiabiIity historic building in Ogden, Utah. Several reasonabIe time after the ad is published. Companies, IRS issues, Asset Protection, offices available. For information, please Bond Issues, Trusts, Estate PIanning or State CA VEA T - The deadline for classified contact (801) 621-1384. advertisements is the first day of each & LocaI Taxes. Consultative/Specific-Issue month prior to the month of publication. relationships for small firms/solo practition- ProfessionaI office spaces avaiIable at 5296 ers also welcomed. Hourly or package rates. (Example: May 1 deadline for June pubIi- South 320 West, Suite 100, Murray, UT cation). If advertisements are received later Call (801) 572-6156. 84107. All services availabIe, call (801) 262-5300. than the first, they wil be published in the Expert EMPLOYEE BENEFITS (ERISA) next avaiIable issue. In addition, payment ATTORNEY, (Labor and Tax) for corpora- Prime office sharing space available for one must be received with the advertisement. tion or law firm. Seventeen years experience. attorney with established firm. Excellent Wil relocate. Call (713) 937-8195. downtown location, close to courthouse. BOOKS WANTED CompIete facilities, including conference Wanted: second-hand copy of West's Pacific OFFICE SPACE / SHARING room, reception area, telephone, fax, copier. Please call (801) 532-7858. Digest set, 1972 to present (green covers). ProfessionaI office space located at 7026 Call Sam (i (801) 673-4892 (St. George). South 9th East, Midvale. Space for two (2) Office sharing available for one or two attorney's and staff. Includes two spacious attorneys in free standing one story build- POSITIONS AVAILABLE offices, large reception area, sink/wet bar, ing at 3530 South 6000 West, West Valley Wanted: transactional Iawyer with 2-3 yrs. fiIe storage, convenient client parking imme- City. Call (801) 963-6558. expo for in-hour position with rapidly grow- diately adjacent to the building. Call (801) 272-1013. ing Las Vegas-based casino company. SERVICES Please submit resume, saIary history to: OFFICE SHARING SPACE AVAILABLE NATIONWIDE LOCATES: Defendants, Attn: Robert E. Bruce, 2411 W. Sahara in downtown law office. Excellent view and Ave., Las Vegas, NV 89102. witnesses, debtors, heirs. No charge if not location. Near state and federal courts and found. FLAT FEE: $195. Nationwide Deputy Attorney I, Summit County is cur- covered parking terrace. Complete facilities computer search and full scale investigation. rently recruiting for a Deputy County include 2 offices, conference room, reception NA TIONWIDE ASSET SEARCHES. Attorney I or II. Performs professional area and full kitchen. Potential office equip- Search for real property, corporations, cars, legal services as required for Summit ment sharing and limited legal assistant ser- boats, airplanes, bank accounts, credit County regarding litigation of juvenile, vices. Rent negotiabIe. Please call Flanders reports, bankruptcies, liens/judgments. civil and criminal cases and handling plan- & Associates, (801) 355-3839. Business or PersonaL. Call for pricing. ning and zoning matters for Summit MANHUNT INVESTIGATIONS. 1-800- "Fully equipped small firm has opening. County. Minimum Qualifications: Member 355-HUNT. Excellent location and view. No salary, but in good standing of Utah State Bar with

November 1995 55 APPRAISALS: CERTIFIED PER- Job Bank, P.O. Box 112001, Salt Lake City, Orem, UT 84058 or call (801) 222-8489. SONAL PROPERTY APPRAISALS - Utah 8411 1. (80l) 531-0331. Resumes of Fax (801) 225-1229. Estate work, Fine furniture, Divorce, legal assistants seeking full or part-time tem- Antiques, Expert Witness, NationaI porary or permanent employment on file VIDEOTAPE DEPOSITIONS: Video- Instructor for the Certified Appraisers with LAAU Job Bank are availabIe on request. taping Services for LegaI ProfessionaIs. Guild of 'America. Eighteen years experi- Depositions - Insurance Investigations - ence. Immediate service available. Robert UTAH VALLEY LEGAL ASSISTANT Surveilance - Evidence. UTAH LEGAL OIson C.A.G.A. (801) 580-0418. JOB BANK: Resumes of legal assistants for VIDEO SERVICES (801) 484-8218. full, part-time, or intern work from our grad- LEGAL ASSISTANTS - SA VING uating classes are avaiIable upon request. CHILD SEXUAL ABUSE - CASE TIME, MAKING MONEY: Reap the bene- Contact: Kathryn Bybee, UVSC LegaI EVAL-UATION Statement, Validity fits of legal assistant profitability. LAAU Assistant Department, 800 West 1200 South, Assessment (SV A). An Objective method for determining the validity of chiId statements and interviewer quality - time saving

...... ~~...~.~...... - and concise - advanced graduate training. No fee for initial consultation. Bruce M. /~q~~CG9~l?(t\ LEGAL COpy Giffen, M.S., Investigative Specialist - ~;;\.:" \\\. ~~ ~\ - (801) 485-4011...... ~.~~.:.~.:.~:../OF SALT LAKE EQUIPMENT FOR SALE: Toshiba BD 7812 photocopier with automatic feeder THE LITIGATION DOCUMENT COPYING SPECIALISTS and sorter, 200. Needs some work. Call (80l) 963-6558.

INFORMATION WANTED Looking for LAST WILL AND TEST A- MENT of Jeff S. Moore or Jeffrey Scott Moore: SS 529-19-0654, July 14, 1961 to JuIy 10, 1995: 4635 South Sunstone Road #52, Salt Lake City, UT 84123. Any information, pIease call Joe Moore (g Payson, (801) 465-5077, S.L. (g (801) 265-1469 or Cell (g (801) 558-9126.

MCLE Reminder CONFIDENTIAL FACILITY Attorneys who are required to comply with the odd year compliance cycle wil QUICK,QUALlTY, OVERNIGHT be required to submit a "Certificate of Compliance" with the Utah State Board of AND SAME-DAY SERVICE Continuing Legal Education by December 31, 1995. The MCLE requirements are as FULL COLOR COPIES follows: 24 hours of CLE credit per two year period pIus 3 hours in ETHICS, for a COpy SERVICES AVAILABLE combined 27 hour total. Be advised that . I attorneys are required to maintain their , I i 24 HOURS -7 DAYS own records as to the number of hours accumuIated. Your "Certificate of Compli- ance" should list all programs that you have attended that satisfy the CLE require- FREE PICK - UP & DELIVERY ments, unless you are exempt from MCLE requirements. Following is a Certificate of Compliance for your use. Should you have 328-8707 questions regarding the requirements, please contact Sydnie Kuhre, Mandatory CLE Administrator at (801) 531-9077. Cori Kirkpatrick J. Kelly Nielsen M. Lance Ashton

56 Vol. 8 No.9 CERTIFICATE OF COMPLIANCE For Years 19_and 19_ Utah State Board of Continuing Legal Education Utah Law and Justice Center 645 South 200 East Salt Lake City, Utah 84111-3834 Telephone (801) 531-9077 FAX (801) 531-0660 Name: Utah State Bar Number:

Address: Telephone Number:

1. Provider/Sponsor Program Title

* * Date of Activity CLEHours Type of Activity

2. Provider/Sponsor Program Title

* * Date of Activity CLE Hours Type of Activity

* * CLE Hours Type of Activity

IF YOU HAVE MORE PROGRAM ENTRIES, COPY THIS FORM AND ATTACH AN EXTRA PAGE **EXPLANATION OF TYPE OF ACTIVITY

A. AudiolVideo Tapes. No more than one half of the credit hour requirement may be obtained through study with audio and video tapes. See Regulation 4(d)-101(a).

B. Writing and Publishing an Article. Three credit hours are allowed for each 3,000 words in a Board approved article pubIished in a legal periodicaL. An application for accreditation of the article must be submitted at Ieast sixty days,priorto reporting the activity for credit. No more than one-half of the credit hour requirement may be-obtained through the writing and publication of an article or articles. See Regulation 4(d)-101(b).

C. Lecturing. Lecturers in an accredited continuing legal education program and part-time teachers who are practitioners in an ABA approved law school may receive three hours of credit for each hour spent in lecturing or teaching. No more than one-half of the credit hour requirement may be obtained through lecturing and part-time teaching. No lecturing or teaching credit is available for participation in a panel discussion. See Regulation 4( d)-l 0 1 (c).

D. CLE Program. There is no restriction on the percentage of the credit hour requirement which may be obtained through attendance at an accredited legal education program. However, a minimum of one-third of the credit hour requirement must be obtained through attendance at live continuing legal education programs.

THE ABOVE is ONLY A SUMMARY. FOR A FULL EXPLANATION SEE REGULATION 4(d)-101 OF THE RULES GOVERNING MANDATORY CONTINUING LEGAL EDUCATION FOR THE STATE OF UTAH.

Regulation 8-101- Each attorney required to fie a statement of compliance pursuant to these regulations shall pay a filing fee of $5.00 at the time of filing the statement with the Board.

I hereby certify that the information contained herein is complete and accurate. I further certify that I am familiar with the Rules and Regulations governing Mandatory Continuing Legal Education for the State of Utah including Regulations 5- i 03(1).

DATE: SIGNATURE:

Regulation 5-103(1) - Each attorney shall keep and maintain proof to substantiate the claims made on any statement of compliance fied with the board. The proof may contain, but is not limited to, certificates of completion or attendance from sponsors, certificates from course Ieaders or materials claimed to provide credit. This proof shall be retained by the attorney for a period of four years from the end of the period of which the statement of compliance is fied, and shall be submitted to the board upon written request. - fi' ,!i,:~-'W=.)':i'!f"""'W'''''''' ", \ì .. II '" . II Two Seminars on tHe theme of:

II . II ~

ii II . IJ BI ~.. ~~~ r:(l~ a Continuing II

Legal · CI Education iI II

II Presented by: . CI

Strategic 'Valuations, Inc. ORrSeminar # 1 an affiliate of ar(b~0~~ D ~ II Black &~ Isom Associates, II Financial Education Thursday, November 16, 1995 II and Consulting II 8 a.m. to 12 p.m. ii II 4 Hours CLE Credits. II Endorsed by:

II II The National Association .. . ii II a of Certified Valuation o Seminar # 2 II Analysts (NACVA) ~~ØllI_ II Thursday, Des.ember 7, 1995 II & CLE approved n 8..a.m. to 12 p.m.

~ 1.. and presented at: 4 Hours CLE Credits I! '" The Utah State Bar II 645 South 200 East . Salt Lake City, Utah For more information and to register, call: II . Strategic Viialuations, Inc. at (801) 486..2999 or (800) 837..1300 or Fax to (801) 486..7500, . 1245 East Brickyard Rd., Ste. 110 II II ..IiSalt Lake City, Utah 84106 a II II II II II ir u: 00~i Utah State Bar BULK RATE 645 South 200 East U.S. POSTAGE SaIt Lake City, Utah 84111 PAID Nr. L.j.i.I.I.i aN I-10.I ':/oak SALT LAKE CITY. UT 201 South Main Street PERMIT NO. 844 F'. O. flo::-= "~.s::=!98 Sal t Lake Ci t\: LIT 84145-0898

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