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.

The post Werner v. Platte County (Part II): Don’t Get Too Excited About the Excited Utterance Hearsay Exception appeared first on Nebraska Litigation & Trial Advisor.

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.

The post Werner v. Platte County (Part I): Get Excited About the Excited Utterance Hearsay Exception appeared first on Nebraska Litigation & Trial Advisor.

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.”

The post Lance Armstrong, Oprah and the False Claims Act appeared first on Nebraska Litigation & Trial Advisor.

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.

The post To Keep or Not to Keep: Targeting Overpayments of Government Funds through the False Claims Act appeared first on Nebraska Litigation & Trial Advisor.

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.

The post Creighton's Trial Team Presents Well at Michigan State Competition appeared first on Nebraska Litigation & Trial Advisor.

One of the focuses going to Columbus has to be sixty minutes of football.  The Huskers’ struggle to put together sixty minutes of quality football cost them the UCLA game, and almost cost them the Wisconsin game.  Ohio State is a quality opponent and Columbus should be a hostile environment.  Without sixty minutes of quality football, it will be a daunting task to pull out a win.  This will mean the Husker Offense will have find a way to possess the football with a good running game and use the passing game to take advantage of Ohio State’s penchant for filling the box.  Consider, for instance, Ohio State’s Defense holding Michigan State’s Le’Veon Bell to 45 yards rushing.  Bell had been averaging  152 yards a game.  With that in mind, Taylor Martinez’ improved passing skills could help keep the Buckeye D off balance and allow the Huskers more room to run the football. 

On the Blackshirt side of the ball, the main focus will be containing Braxton Miller.  It does not take a rocket scientist to figure out how bad Miller burned the Blackshirts last year in Lincoln.  It also does not take a rocket scientist to figure out the Husker comeback did not start until after Miller left the game with an injury.   

As four of five of the Buckeye’s games have been tight this year, including three games involving lesser competition at home, the Huskers should have a real shot at this game.  I am staying on the bandwagon, 28-21 Huskers. 

GBR!

P.S.  The Red Sox finally fired Bobby Valentine yesterday.  Things can only improve with that step.

The post Huskers Head To Horseshoe To Take On Ohio State appeared first on Nebraska Litigation & Trial Advisor.

“If you want me to give you two-hour presentation, I am ready today.  If you want only a five-minute speech, it will take me two weeks to prepare.”

–Mark Twain

I used to use this quote when teaching Legal Writing.  Along with its first cousin:

“I didn’t have time to write a short letter, so I wrote a long one instead.”

 –Mark Twain

 These can be used in many legal settings.  Good product delivered by any medium takes time.  In the legal setting most audiences (Judges, clients, jurors, colleagues, just about any audience you can conceive) want brevity.  We are taught in legal writing to use the active voice and short sentences.  The same holds true for trial work.  Get to the point.  Use words that matter.  Say what you mean.  Doing these things takes time.  While the law of diminishing returns will set in eventually, that point is often farther away than most people think.

The post Mark Twain Should Have Taught Legal Writing appeared first on Nebraska Litigation & Trial Advisor.

By Cathy Trent-Vilim:

The use of social media has become so prevalent that oftentimes users do not think through the consequences of their posts.  In some instances, a social media misstep can be the beginning of the end of a promising career. 

Take for instance Anya Cintron Stern, 31, a Miami-Dade public defender.  She was defending her client, Fermin Recalde, who had been charged with murder in connection with the stabbing death of his girlfriend.  During his trial, Recalde’s family brought him some clothes to wear during trial, including a pair of leopard-print underwear.  Apparently amused by the family’s selection, Cintron Stern took a photo of the underwear while they were being quickly held up and inspected by a corrections officer.  She then posted the photo on her personal Facebook page, along with a caption about “proper attire for trial.”  Someone saw the post and notified the trial judge, who declared a mistrial.  Cintron Stern was immediately fired.

Even more problematic than the underwear photo was Cintron Stern’s prior, albeit less publicized, Facebook posting that seemingly called her client’s innocence into question. So much for zealous advocacy.

Those of you reading this post are likely saying to yourself, “Duh.  I would never do something like that.”  Yet, in the day and age of Twitter, Facebook, YouTube, Pinterest, and any number of other social media outlets, it is sometimes difficult to keep the lines between our personal and professional lives from becoming blurred.  In those instances, a post that was intended to be “personal” and “amongst friends” can detrimentally impact our work lives.

Of course, this does not mean that you are prohibited from using social media in a professional capacity.  To the contrary, many firms have created their own Facebook pages for marketing purposes.  However, if you are going to use social media, use it properly.  Keep your personal Facebook posts about your personal life and make sure your work-related posts are professional.

Above all else, remember that whatever you post will be preserved for posterity and will follow you wherever you go.

The post Don’t Let Leopard-Print Underwear – or a Social Media Misstep – Become the Beginning of the End of Your Legal Career! appeared first on Nebraska Litigation & Trial Advisor.

1.  Nebraska looks to avenge its first game as a member of the Big Ten played last year at Camp Randall.  What most fans wish was the forgettable beat down administered by the Badgers a year ago is not forgotten by the Huskers.

2.  As if last year’s on-field memory wasn’t enough, Wisconsin defensive end David Gilbert supplied bulletin board material by calling Taylor Martinez “soft” and saying he “still can’t throw.”

3.  Nebraska and Wisconsin both will take the field wearing “futuristic” uniforms provided by Adidas.  Like this trend or not, the Blackshirts, sporting black helmets for the first time in school history, will want to live up to the name.

4.  The motivational cherry on top of all of that is the fact that this game will be played in the wake of the announcement that Tom Osborne will retire at the end of 2012.  I can’t imagine that the Huskers will want the first game played on Tom Osborne Field after the announcement to be a loss.

I know the buzz in Lincoln is strong.  Can You Feel It?

The post B1G RED SHOWDOWN appeared first on Nebraska Litigation & Trial Advisor.

First and foremost, from 1972 to 1975, the Bengals were coached by family friend and former University of Rhode Island Head Coach, Bob Griffin.  Coach Griffin coached my father while he was in college.  I had the honor of serving as a University of Rhode Island Football Ball-boy in the 1980′s, including the Rams’ glory years of 1984 and 1985.

Second, Rex Burkhead will be back in the line-up after missing two games with a sprained ligament in his knee.  Unfortunately, Burkhead’s injury came the week before UCLA.  With B1G Conference play starting next week and a FCS opponent, Burkhead should probably be eased back into the rotation to shake off the rust. 

Third, the Huskers should win handily.  As such, it should be an opportunity to secure some playing time and experience for some of the back-up players.  Hopefully, we will see some playing time for the back-up Quarterback.  Whoever that may be at this time.  I suspect the answer would change depending on mop-up duty or a Taylor Martinez injury.

Fourth, the Huskers will be without Linebacker Ziare Anderson for the rest of the season.  The junior college transfer tore his ACL last week in practice.  Despite his injury, he played against Arkansas State and contributed three tackles.  A disappointing loss of a Linebacker who showed good lateral speed and sideline to sideline ability.  Even more disappointing when you consider the Huskers’ lack of depth at the position. 

Tough one to call this week.  I’ll go with the Huskers, 63-10. 

GBR!

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