Lamson, Dugan and Murray, LLP, Attorneys at Law

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.

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.

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.