Lamson, Dugan and Murray, LLP, Attorneys at Law

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.

Huskers Head To Horseshoe To Take On Ohio State

Posted in Uncategorized

On Saturday October 6, 2012 the Nebraska Cornhuskers will play their first B1G game in the Horseshoe.  Bo Pelini will be coaching against his Alma mater and the famed Urban Meyer.  After a comeback win against the Wisconsin Badgers, the media began its immediate focus on Coach Pelini returning to Ohio State.  If one paid attention to Pelini’s comments to the media before the Buckeyes traveled to Lincoln last year, you would know Pelini did not take the bait and noted the games is about the players. 

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.

Mark Twain Should Have Taught Legal Writing

Posted in Appellate Work, Legal Writing

I am about a month into year seven (I think) of teaching a trial class for Creighton University School of Law.  I enjoy the process but every year one of the most frustrating things for students is how long it takes to develop their case.  As with many things, there is simply no substitute for experience.  But last week I was reminded of one of my favorite quotes and shared it with the team.  

“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.

Don’t Let Leopard-Print Underwear – or a Social Media Misstep – Become the Beginning of the End of Your Legal Career!

Posted in Ethics

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

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.

B1G RED SHOWDOWN

Posted in Uncategorized

Nebraska and Wisconsin open their respective B1G seasons against one another in Lincoln.  The sad sack Big Ten is ripe for the taking so both teams are motivated to get off on the right foot.  Nebraska looks to do so with some extra motivation from multiple sources:

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?

Huskers to Scrimmage Against FCS Idaho State Bengals

Posted in Uncategorized

Based on Louisiana Monroe’s upset of Arkansas and overtime loss to Auburn, no opponent should be taken lightly.  Despite that, it is difficult to seriously discuss a game between a team with the history of the University of Nebraska and an Idaho State Bengal Big Sky Conference team which has won a total of 18 games over the last 8 seasons.  For those wondering, that is 2.25 wins a season.  (The Bengals were 2-9 in 2011).  There are four possible exciting story lines going into this game, one of which will only be interesting to me, my father and some other friends and family. 

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!

Offering An Out of Court Statement? Hearsay Rule Simplified

Posted in Cross Examination, Direct/Redirect Examination, Trial

Everyone, it seems, has heard of the word “hearsay.”  Those of you lucky enough to be non-lawyers probably associate the word as meaning “something someone else said” or maybe even “gossip.”  In fact, one on-line dictionary simply defines it as “information that you have heard without having any proof that it is true.”  Well, in the law, the definition of hearsay is provided by the rules of evidence.

From that standpoint, hearsay is defined, under the federal rules and every jurisdiction in which I have practiced, as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Put a different way, hearsay is an out of court statement offered for the truth of the matter asserted.  There are numerous exceptions to the rule prohibiting the admission of hearsay evidence (though exceptions and exclusions are different concepts.  The law makes some things simply “not hearsay” rather than excepting something that is hearsay from the rule prohibiting it). 

Lawyers (and yes, even Judges) often struggle with the rule and how to apply those numerous “exceptions.”  But there is often an easy around the struggle.  The first question you need to ask when eliciting an out of court statement is why you are offering the statement.  If you are not offering the statement as proof that what was said is true then you do not have hearsay and the statement may be admitted.  Start with that and you could save yourself a lot of headaches and time deciphering one of those 38 exceptions.       

Example: 

Mike said he was only gone for a minute.

If you are offering this statement to show that Mike really was only away for a minute then you are offering it for its truth and you may have hearsay problems.  If you are offering the statement simply to show that Mike was able to speak then it does not matter what he said or whether it is true.  This is not hearsay.  But remember; if you say you are not offering the statement for its truth, you cannot then argue that the statement was true in your closing argument.

Ethical Duty Owed Third Party Lienholder or Subrogation Interest

Posted in Ethics

We know attorneys have an ethical obligation to their own clients for the safekeeping of property under Nebraska’s Rules of Profession Conduct.  Neb.Rev.Stat. § 3-501.15.  This often arises in the area of personal injury litigation.  In fact, improper handling or usage of client monies often results in disbarment in the state of Nebraska. 

It also appears Nebraska attorneys have an ethical obligation to protect the property of third parties whose interest may be contradictory to that of their client.  Neb.Rev.Stat. § 3-501.15(d) and (e) provides some interesting language about an ethical duty owed by counsel to a party they do not represent.  The language is as follows:

(d)  Upon receiving funds or other property in which a client or a third person has an interest, a lawyer shall promptly notify the client or third person.  Except as stated in this rule or otherwise permitted by law or agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. 

(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of who may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved.  The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute. 

The comments to § 3-501.15 go on to provide:

[4]  Paragraph (e) also recognizes that third parties may have lawful claims against specific funds or other property in a lawyer’s custody, such as client ‘s creditor who has a lien on funds recovered in a personal injury action.  A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client.  In such cases, when the third-party claim is not frivolous under applicable law, the lawyer must refuse to surrender the property to the client until the claims are resolved.  A lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party, but, when there are substantial grounds for dispute as to the person entitled to the funds, the lawyer may file an action to have a court resolve the dispute. 

As noted above, Nebraska attorneys have an ethical obligation to protect the property of their clients.  In my mind, the language of § 3-501.15 and the comment clearly establishes an ethical duty on the part of an attorney to determine the lawfulness of claims of third parties and then protects those interests.  As an attorney who handles a fair amount of personal injury litigation from a defense perspective, I find this obligation comforting when it comes to issue of lien and subrogation interest resolution.  As an attorney, I find obligation perplexing and confounding.  Depending on how a contingent fee agreement is worded, personal injury attorneys are often compensated by how much money they secure for the client.  This can be effected by the resolution of interests of third parties.  As such, Nebraska personal injury attorneys just may have conflicting ethical obligations when it comes to client and third party funds.  An ethical “Catch 22” to say the least.

Blackshirts Will Be Just Fine Thank You

Posted in Uncategorized

As Nebraska prepares to host Arkansas St. this week most of Husker Nation is still talking about the loss last week at UCLA.  Most are aghast at how the Blackshirts were gashed for 653 yards last week.  But didn’t Arizona’s big win over Oklahoma St. make NU’s loss feel any better?  In a way it did for me (along with Wisconsin’s loss to Oregon State, Arkansas’s loss to Louisiana-Monroe and Michigan’s narrow win over Air Force). 

As bad as the game was, I said to a friend of mine before the season even started that I viewed this season as a means to an end.  I still would be disappointed with anything less than 9 wins (though after seeing the Big Ten’s performance in the early season there is not a conference game on the schedule that can’t/shouldn’t be won).  We knew coming in to this season that Nebraska’s offense would be pretty good and the defense would be ok but not great.  A work in progress due to youth and low numbers at a number of positions borne out of the move from the Big XII to the B1G. 

If you look at the offense for next year, 2013, nearly everyone good will be back for year three of Tim Beck’s system; particularly at the skill positions and the all important QB position (detractors can debate whether another year with Martinez is good or bad but I’ll take three years with a Heisman moment type QB in the same system).  So, it stands to reason that next year the offense will be positioned to again put up 30+ points a game.  Offensive line is a bit of a question mark, particularly after some apparently hurtful transfers but NU should still be about 10 deep there.

That takes us to the defense.  Right or wrong Coach Pelini seems reluctant to let young/new guys learn on the fly in games.  He is historically bad about playing young guys.  Unusual as it is, but not surprising given that Pelini is a defensive minded coach with a high-brow system, this is much more common on defense than offense.  Perhaps more so in his system where a busted assignment by one guy leads to a big play by the other team.  But, if you look at the roster you see that the guys Pelini has recruited for his style (and B1G style), particularly on defense, are very young.  Curry, Moss, Valentine, Peat, McMullen, Ashburn were all recruited by Pelini for this system and will be in their second or third year in the program.  The linebackers will be better too.  Rose, Santos, Zaire Anderson, Thomas Brown, Pirman, Afalava are all (supposed to be) bigger, athletic LBs who can run and stuff the run.  They will all be in their second or third year in the program.  The secondary will be stocked with talent and experienced with Seisay, Chls. Jackson, Hvy. Jackson, Alonzo Moore, Cooper, Mitchell, Green, S J-B, and Jonathan Rose who transferred from Auburn. 

In my opinion, all three levels on defense will see a big jump next year.  Obviously that assumes a lot; no injuries, no bad transfers, hard work and dedication.  But those are things every team deals with every year.  In my opinion, NU fans should give Pelini the leeway to get those young guys snaps, live with the mistakes and reap the future rewards.  Right or wrong, I don’t think he feels like he can do that. 

CFB has changed.  Even vaunted SEC teams and Texas teams lay some duds (See Arkansas; John L. Smith’s audition is not going so well).  And they do it with (by all accounts) far superior talent and depth.  Auburn is 0-2 for goodness sake. 

Would NU want to be a program that values winning a National Championship and two years later going 0-2 to start the season?  I’m not sure I would.  Consider this quote from an article written before the 2010 season: 

The Huskers have won at least nine games in every season since 1962 but six: 1967-68, 2002, 2004-5 and 2007. Just as a comparison, let’s hold the rest of college football’s historical elite to the same standard. Alabama has 18 such seasons, if you include 1993, over that same span; Georgia has 22; L.S.U. 18; Michigan 27; Notre Dame 21; Ohio State 29; Oklahoma 25; Penn State 30; U.S.C. 23, if you include 2005; Tennessee 23; and Texas 28.

I think I would prefer 9 wins seasons, competing for BCS bowls and winning a NC or two every 20 years or so.  Obviously, I would prefer to be Alabama currently but before Saben got there it was up and down as much as any other program.  And remember that Saben cut his teeth at Michigan State before taking the SEC jobs where he won National Championships, getting every great recruit and becoming a genius coach.  It is hard to win in CFB and it’s getting harder every day. 

I am very perplexed by the bad loss to UCLA but in the scheme of things I’m not sure it really matters.  NU wasn’t going to win the NC this year and playing in a BCS bowl is probably not affected by that game very much as the B1G doesn’t figure to be a two bid conference this year.  The UCLA game seemed to me to be the sign of a coach trying to get all the pieces to line up the way he wants so he can make a dominant run.  As NU fans who lived through the 80’s we certainly should know that building an elite football team does take time.  I’m still willing to give it.

Huskers Travel to Rose Bowl to Face the UCLA Bruins

Posted in Uncategorized

After beating Southern Miss 49-20 last Saturday, the Nebraska Cornhuskers travel to the Rose Bowl to take on the UCLA Bruins. 

Going into last week’s game, most expected the Blackshirts would outplay the Offense.  It was further believed the Special Teams would be solid due to returning All American Kicker, Brett Maher.  Coming out of the game, the Blackshirt front four looks shaky; Brett Maher’s field goal kicking and punting look suspect; the Huskers gave up a 100 yard kick-off return for a touchdown; and the Offense looks like a well oiled machine.  Taylor Martinez employed his new footwork and throwing motion for 354 yards passing, 5 touchdown passes, a 76% completion rate and no interceptions.  The Receivers and Tight-ends looked fantastic.  The O-Line looked great and the Offense piled up 294 rushing yards.  The only big negative to come out of the game was Heisman Trophy candidate Rex Burkhead spraining his MCL in the first quarter.  So, going into Los Angeles, the big questions will focus on Burkhead’s return (he has not practiced this week) and Ameer Abdullah, Imani Cross and Braylon Heard picking up the slack; Talyor Martinez maintaining his improvment; Brett Maher bouncing back to his All-American form; and the Blackshirts rounding into shape.  

From UCLA side of the ball, the Bruins won their first game by a score of 49-28 over a bad Rice University team (4-8 in 2011/2012) .  In typical Pac-12 fashion, the Bruins surrendering 358 yards, 34 minutes of possession and 24 points to Rice bodes well for the Huskers.  Unlike many Bo Pelini teams of the past, the outcome of this game appears to depend on the performance of Blackshirts.  The Bruins put 343 rushing yards and 303 passing yards.  So, the Blackshirt front four will need to bounce back by shaking blockers, making tackles and creating some pressure on the quarterback.  A relatively untested but strong  Blackshirt Defensive Backfield will also face its first real test of the season as Southern Miss relied on three young and inexperienced quarterbacks.

Considering all the factors, I’ll take the Cornhuskers 38-24. 

GBR!