Lamson, Dugan and Murray, LLP, Attorneys at Law

Oh the Humanity! What to Do When the Nebraska Court of Appeals Cancels Your Oral Argument in an Appeal PART I

Posted in Appellate Work

Cathy Trent-Vilim

This post is authored by Cathy Trent-Vilim, a partner in LDM’s litigation department.

Imagine stepping up to the plate, preparing to hit your first baseball of the season.  You’ve been looking forward to this moment for months, picturing it in your mind and practicing for what seems like forever.  Just as the pitcher gets ready to wind up, the heavenly floodgates open and a torrential downpour ensues.  Worse yet, the rains persist and the umpire calls the game.  Such disappointment!

Well, if you’re attorney, this is the kind of disappointment you feel when you receive a notice from the Nebraska Court of Appeals informing you that the Court has elected to submit your case “without oral argument.”  For appellate lawyers, oral argument is the functional equivalent of trial.  Certainly, reviewing the appellate record and drafting the appellate briefs can be exciting in their own rights, in much the same way as written discovery and depositions in litigation.  But oral argument – that is the pièce-de-résistance.

In days past, there was nothing to be done after receiving the fateful notice from the Court.  You simply waited for the Court’s opinion.  Recently, however, the Supreme Court amended Neb.Ct.R.App.P. § 2-111(B)(1) to allow parties to file a motion and request oral argument where the Court has otherwise ordered the case submitted without oral argument.

Under the new rule, parties have seven (7) days after the date of the minute entry submitting the case without oral argument to file a motion setting forth the reasons for why the Court should hear oral argument.  The opposing party then has seven (7) days after the filing of the motion to respond.  Once the response period expires, the motion is submitted to the Court for its consideration.

What, you ask, are sound reasons for requesting oral argument, especially when the Court has seemingly already deemed your case unworthy?  Good question.  Read Part II of this blog for the answer.

AAJ Regional Trial Competition

Posted in Cross Examination, Litigation Tips, Trial

Last week I noted that I would be assisting with the AAJ Regional Trial Competition held in Omaha.  I served as a judge for what was, in my view, a very close round between two good teams.  Here are some of the trial tactics I was reminded of:

  1. Do not assume the presiding judge knows your case as well as you do.  This particularly true when responding to an objection as to relevance.  In order to win the objection the judge must either independently see the relevant nature of the evidence.  If not, it is up to you to explain it.  Which inevitably leads me to number 2 . . .
  2. When making a relevance objection you should consider asking the judge to hear the opposing party’s response at the bench.  In order to explain why the other side thinks an item of evidence is relevant they must, in essence, give a closing argument.  If you allow the jury to hear opposing counsel do that, and the judge ultimately agrees with you and keeps the evidence out the jury may be influenced by the losing argument.  If the judge disagrees with you and ultimately let’s the evidence in the jury, without having the heard the explanation, may never pick up on the relevance and may not hear about it if it does not make it into the closing argument.
  3. You must try to limit an adverse witness’s ability to say what they want on cross.  You do this by controlling the witness who wants desperately to expand beyond the scope of what you asked.  Without a doubt this is the single most difficult thing for law students and many lawyers to learn.  But without doing so the evidence you want the jury to absorb is cluttered with the other side’s spin.  Because it is difficult many lawyers give witnesses too much leeway; hoping, it seems, that exposition will be short.  It rarely is.  In fact, the longer you let it go the more it happens.

I always find it rewarding to watch trials; even pretend trials tried by law students.  It can serve as a good reminder of what works and what doesn’t.  It is also nice to have the perspective of observer rather than being in the line of fire.

 

Nebrasketball and McDermott; A Retrospective

Posted in Sports

Today is a pretty exciting day for the state of Nebraska.  Both Creighton University and the University of Nebraska-Lincoln are in the men’s NCAA Tournament.  The Nebraska women won the B1G Tournament and also picked up a 4 seed in the women’s NCAA Tournament (and if they can find a way to win two games they will play a home game, likely against power UConn, as Lincoln’s PBA will host the region’s sweet 16).  But the state’s two largest Division I men’s programs are not just in the same tournament; they are in the same bracket.  If both win they would face each other in the second round.

Creighton enters as the 3rd seed in the West Region.  They are led by the three time All American Doug McDermott.

To commemorate this occasion, I want to take you back to two posts I authored.  The first post was during McDermott’s sophomore year.  I said then:

He may well end up being the best Creighton Bluejay to ever put on the uniform.

Two years later I think its safe to say we can put that debate to rest.  Doug McDermott is the best player to ever play for Creighton.  And a simple google search demonstrates that the rest of the country has certainly taken notice.  As for his future, I think it is also safe to say that, barring injury, he will play a long time at a high level in the NBA.

Several months after that post about Doug McDermott, Nebraska announced the decision to hire a relatively unknown coach named Tim Miles.  The hire was met with some skepticism and some particularly harsh assessment from a couple of well thought of former players.  Nonetheless, following the announcement I wrote:

To me this experience is exactly what NU needed.  Miles knows what it means to operate from a disadvantage.  But, as he said, he has succeeded in overcoming those disadvantages at every step.  He has spent his entire career as an architect of basketball programs.  I believe he will construct NU into a winner.

Well, one B1G coach of the year award later NU is dancing for the first time since 1998.  Yes, these are exciting times to be a basketball fan in Nebraska.

Judging AAJ Regional Trial Competition

Posted in Trial

This week Omaha plays host to a regional trial competition sponsored by the American Association for Justice.  Nine law schools from the Midwest region will send a total of 16 teams to compete.  I, along with many of my Omaha attorney colleagues, will serve as performance and presiding judges for the rounds.  This is a big moment in the lives of the participating law students.  It is where they have the opportunity show off the hard work they have put into developing their trial strategies and skills.  As I have said in other posts, watching these students can be a great learning experience for practitioners of all skill levels.  I look forward to participating and, next week, I will send out a report on the good work that I was able to observe.

Use Of Original Deposition Testimony When There Has Been Substantive Change With Errata Sheet

Posted in Deposition Preparation, Depositions, Expert Witnesses

This post is authored by LDM lawyer Maria Lighthall.

The sworn deposition testimony is taken, but then comes the Errata Sheet with both form and substantive changes that contradict prior testimony.  Are such changes in testimony admissible at trial?  The Majority rule says yes.

writing on white ruled paper

Pursuant to the plain language of Neb. Ct. R. Disc. §6-330(e), changes to deposition testimony in form or substance are permitted so long as the changes are accompanied by the reasons for the change.  Specifically, §6-330(e) provides that “[A]ny changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them.” (emphasis added).

Although there appears to be no Nebraska case law directly addressing §6-330(e), Nebraska courts will look to federal case law for guidance because the Nebraska Rules of Discovery are generally and substantially patterned after the corresponding discovery rules in the Federal Rules of Civil Procedure. Gernstein v. Lake, 259 Neb. 479, 480, 610 N.W.2d 714, 716 (2000).  The traditional view adopted by federal courts in interpreting Rule 30(e) is that any changes are permitted, regardless of whether they contradict deposition testimony.  Lugtig v. Buttermaid Bakeries, Division Ward Foods, Inc., 89 F.R.D. 639, 641 (N.D. Ill. 1981), Summerhouse v. HCA Health Servs., 216 F.R.D. 502, 508 (D.Kan. 2003) (permitting changes in form and substance but limiting changes that materially bear upon an essential element or defense).  The rule does not require a judge to examine the sufficiency, reasonableness, or legitimacy of the reasons for the changes. Lugtig, 89 F.R.D. at 641.

One final word of caution: even though you can make substantive changes – the original response can be used for impeachment purposes.

Werner v. Platte County (Part II): Don’t Get Too Excited About the Excited Utterance Hearsay Exception

Posted in Appellate Work, Cross Examination, Direct/Redirect Examination, Discovery, Litigation Tips, Trial, Witness Preparation

Cathy Trent-Vilim   LDM Partner Cathy Trent-Vilim continues her discussion of her recent case in this post.

You read in Part I of Werner v. Platte County how the Nebraska Supreme Court affirmed the trial court’s ruling that statements by Mr. Werner made to the EMT while at the scene of the accident qualified for the excited utterance exception to the hearsay rule.  The purpose of this post is to discuss why similar statements made to a Nebraska State Patrol officer only a few hours later at the hospital were declared inadmissible hearsay, and why the trial court’s erroneous admission of that evidence did not warrant a new trial.

After being airlifted to a hospital, Mr. Werner was questioned by a trooper from the Nebraska State Patrol, which Platte County had called in to investigate the accident.  Although he does not recall the event, Mr. Werner informed the officer that:

  1. the other occupant was driving the vehicle, which was traveling approximately 120 miles per hour, and
  2. during the pursuit Mr. Werner told the driver to let him out.

The trooper testified to each of these statements over the County’s objections.

On appeal, the Nebraska Supreme Court rejected Werner’s position that these statements were also excited utterances.    Despite the fact that he was still reeling from the immediate effects of the accident, the court determined that too much time had elapsed since the accident for the statements to be excited utterances.  Further, the statements were made in direct response to questioning by law enforcement and therefore did not meet the spontaneity element.  Finally, although Mr. Werner had been medicated, was discussing his likely paraplegia with the medical team, and was still unaware of the driver’s condition, the trooper also testified that Mr. Werner was alert, conscious and responsive.  As a result, the excited utterance exception did not apply (the court also rejected arguments that the statements were prior consistent statements, verbal acts, or statements of Mr. Werner’s state of mind).

The determination that the evidence had been admitted in error, however, did not end the court’s analysis.  To constitute reversible error, the County had to demonstrate that the erroneous admission of the evidence was unfairly prejudicial to a substantial right.  The County argued that the trial court’s reference to, and reliance upon, this evidence demonstrated undue prejudice.  But erroneously admitted evidence is not prejudicial if it is cumulative of other admissible evidence.  In this case, the EMT’s testimony about similar statements made at the scene was properly admitted.  Additionally, the trooper’s testimony about the identity of the driver was a “relatively small” part of the total evidence the trial court relied upon in deeming Mr. Werner a passenger and in finding Mr. Werner’s testimony credible.

In the end, the trooper’s testimony was a case of ‘no-harm, no-foul.’  Should you find yourself in a similar position, where the opposing party is arguing that testimony was improperly received, be sure to scour your appellate record and look for instances of similar evidence.  Even if your trial evidence was improperly received, you may be able to avoid re-trial court on the basis of the cumulative evidence rule.

Werner v. Platte County (Part I): Get Excited About the Excited Utterance Hearsay Exception

Posted in Appellate Work, Direct/Redirect Examination, Discovery, Litigation Tips, Trial, Witness Preparation

LDM attorneys Cathy Trent-Vilim and Bill Lamson recently received a decision from the Nebraska Supreme Court affirming the maximum $1 million judgment obtained on behalf of Brian Werner in a suit against Platte County, Nebraska, arising from injuries Mr. Werner suffered while a passenger in a vehicle being pursued by a Platte County deputy.

Cathy Trent-Vilim

LDM Partner Cathy Trent-Vilim  discusses her recent case in this post.

In appealing the judgment, Platte County assigned numerous errors related to the trial court’s receipt of hearsay into evidence.  This post will discuss the Supreme Court’s analysis of the excited utterance exception.  In order to understand the Court’s analysis, a few facts about the case are necessary.

The vehicle in which Mr. Werner was riding was traveling at approximately 113 miles per hour when the driver lost control and the car veered down a ditch, into a cornfield, and rolled end-over-end several times.  Neither the driver nor Mr. Werner was wearing a seatbelt and were ejected.  The driver suffered a head injury and has never regained consciousness.  Mr. Werner suffered a back injury and is a paraplegic.  While Mr. Werner was being attended to by emergency personnel, he uttered statements to an EMT to the effect of ‘I told him he was going way too fast’ and ‘I kept telling him to let me out.’  These statements were critical to Mr. Werner’s case, for in order to recover under Nebraska’s vehicular pursuit strict liability statute, Mr. Werner had to prove he was not a person sought to be apprehended by law enforcement (i.e., not the driver) and was an “innocent third party” (i.e., that he had not promoted, provoked or persuaded the driver to flee). These statements were evidence of both.  Mr. Werner, however, did not recall making any such statements at the scene.

Over the County’s hearsay objections, the trial court allowed the EMT to testify to both statements under the excited utterance hearsay exception.  It then relied on these statements in finding for Mr. Werner.  Addressing the County’s assignment of error, the Nebraska Supreme Court recited the elements for the excited utterance exception:

  1. there was a startling event;
  2. the statement related to the event;
  3. the statement was made while the declarant was under the stress of the event.

According to the Court:

[t]he key requirement is spontaneity, which ‘requires a showing the statements were made without time for conscious reflection.’

Mr. Werner’s statements to the EMT met the excited utterance exception.  First, the pursuit and accident constituted a startling event.  Second, Mr. Werner’s statements related to the startling event.  Finally, Mr. Werner made the statements while “lying on his back, paralyzed, in a cornfield fighting for his life” and therefore under the stress of the event.  Further, the Court rejected the County’s argument that the statements were not spontaneous because they were made in response to questioning by law enforcement.  After reviewing the record, the Court noted that while there was some evidence to support the County’s allegations, other evidence indicated that the statements were uttered “several time[s], over and over,” before any provocation by law enforcement.  Since the focus of the spontaneity question is whether the statements were made “without conscious reflection,” and the evidence indicated that Mr. Werner had made the statements while “confused at times” and “moaning in pain,” the trial court’s finding that the statements were spontaneous was not clearly erroneous.

Stay tuned for Part II to learn why these same statements, made to someone else, were inadmissible hearsay.  Also learn why the trial court’s erroneous admission of these statements did not constitute grounds for a new trial.

Lance Armstrong, Oprah and the False Claims Act

Posted in In-House Counsel, Legislation, Trial

This post is authored by Stacy Morris, a partner in LDM’s litigation department.

By Stacy Morris

Recently, we had written several blog posts about the expanding reach of the False Claims Act, and, in particular, of the whistleblower provisions which allow citizens to bring private actions against those suspected of making false or fraudulent claims to the government.  The False Claims Act has become an increasingly hot topic over the past week following Oprah Winfrey’s widely anticipated interview of Lance Armstrong, in which he admitted to doping.  Oprah’s interview happened to coincide with the government’s deadline to decide whether it wished to intervene in a False Claims Act lawsuit that had reportedly been filed in 2010 by Armstrong’s former teammate, Floyd Landis. 

In his suit—which was required to be filed under seal—Landis reportedly alleges that Armstrong defrauded the government by accepting approximately $30 million in funds from his sponsor, the U.S. Postal Service, while violating the contractual prohibition against doping.  The government was supposed to have through the end of last week to make its decision, but is believed to have requested an extension of time so that it can consider whether intervening would be in the best interests of the United States.  Because of the mandatory treble damages provision in the False Claims Act, Armstrong face more than $90 million in damages, along with penalties for each false claim.  Armstrong could try to mitigate damages by, for example, arguing that the Postal Service financially benefited from the arrangement, but any credit for such amounts would likely be applied only after the damages are tripled.  Meanwhile, if the government intervenes in the case, Landis’ stands to receive between 15% and 25% of any recovery as a reward for bringing the fraud to the government’s attention.  His potential recovery would increase to up to 30%, however, if the government decides not to join the case. 

Forbes contributor, Erika Kelton, explains what is at stake for Armstrong—and Landis—in her article entitled: “The Whistleblower Lawsuit Against Lance Armstrong: What to Expect Next.”

To Keep or Not to Keep: Targeting Overpayments of Government Funds through the False Claims Act

Posted in In-House Counsel, Legislation, Trial

This post is authored by Stacy Morris, a partner in LDM’s litigation department.

By Stacy Morris

In earlier posts, we had submitted a four-part series about the False Claim Act (“FCA”), and its ever-expanding reach in light of amendments that were passed as part of the Fraud Enforcement and Recovery Act (“FERA”) of 2009.  The FCA generally prohibits making false or fraudulent statements to the government to get government funds.  Since FERA, it has become less burdensome, in many respects, for the government to establish violations of the FCA.  In False Claims Act Fraud Liability (Without the Fraud), a recent article by Joshua Buchman and Peter Schutzel, the authors focus on the “reverse false claim” provision of the FCA.

While the FCA is typically viewed as imposing potential liability against those who submit a false statement or record in an effort to obtain government funds, the “reverse false claim” provision is triggered when a recipient of government funds avoids an obligation to pay the government.  This situation typically arises when a defendant receives an overpayment from a government program. Significantly, liability may attach regardless of why the overpayment was made.  For instance, an overpayment resulting from a subtle change to the program rules could form the basis for a FCA lawsuit, as could an overpayment caused by a government clerk’s simple mathematical error. 

FERA makes it less difficult to prove not just standard false claims cases, but reverse claims as well.  Now, instead of having to prove a reverse claim by establishing that a false record or statement was provided to the government, as was required under the old provisions, it is enough for the plaintiff to show that a defendant’s decision to keep an overpayment was “knowing and improper.”  What this term means is anyone’s guess since “improper” is not defined, but commentators have suggested that the term is likely be interpreted in a manner consistent with the FCA’s purpose of serving as a broad tool aimed at combating alleged fraud.  We’ve all heard the story of the customer who goes to withdraw cash from the ATM, only to discover that the bank mistakenly deposited $100,000.00 into his account instead of $1,000.00.  Under FERA, it is doubtful that the customer who then proceeds to withdraw the full $100,000.00 (justified, for example, by a claim that he assumed it was an inheritance from a long-lost, recently-passed uncle) will avoid liability since the customer likely knew of the overpayment and failed to return it.

Creighton's Trial Team Presents Well at Michigan State Competition

Posted in Trial

This year I again, along with co-coach Amy Zacharias, a Pottawattamie County, Iowa, Assistant County Attorney, had the pleasure of teaching trial advocacy to a team of four third-year law students from Creighton University’s School of Law.  The team of four prepared for two months to compete at the National Trial Advocacy Competition hosted by Michigan State University College of Law.  The team then competed against 25 other schools at the competition held in Lansing Michigan October 25-28.  This year’s problem presented a unique set of facts surrounding the strangulation of a socialite.  The accused was the family’s handy man who had a long time crush on the victim.  

The Creighton students presented well in three very close preliminary rounds.  One of our students, Alyssa Jelinske, was presented the award for Best Direct Examination of her witness; portrayed by team member Adam Kuenning.  She was selected for this award following the three preliminary rounds in which each of the 26 teams at the competition delivered at least two direct examinations in each of the three rounds. 

All of the team members, Alyssa, Adam, Kara Stockdale and Scott Boyce, deserve to be congratulated for their dedication and hard work throughout the process.  They devoted nearly every day for two months to developing their trial skills and substantive understanding of the law.  As trial lawyers know, being in trial is a trying process (yes, the pun is intended).  But the preparation for this competition has prepared these four, and others like them, for the “real life” rigors of trial work.