Lamson, Dugan and Murray, LLP, Attorneys at Law

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.       


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.

Law Students' Suits Against Law Schools Dismissed

Posted in In-House Counsel

In February, one of our blogs noted lawsuits being filed by laws students seeking damages due to law schools misrepresenting employment and salary data.  This included suits against New York Law School and Thomas M. Cooley Law School .  The claims raised by the suits appeared to be an uphill climb due to a few factors.  First, the critical thinking and analysis required of a potential attorney.  Second, the unforeseen effects of the economic decline in 2008.  At least two courts have expressed some agreement with those conclusions.

In the action against New York Law School, Judge Melvin L. Schweitzer of the Supreme Court of the State of New York – New York County dismissed the students’ case.  In doing so, the court wrote, in part, as follows: 

Plaintiffs could not have reasonably relied on NYLS’s alleged misrepresentations, as alleged in their fraud and negligent misrepresentation claims, because they had ample information from additional sources and thus the opportunity to discover the then-existing employment prospects at each stage of their legal education through the exercise of reasonable due diligence.

Plaintiffs’ theory of damages, that is, an award of the difference between what they paid for their law degree and an amount representing its ostensibly lesser intrinsic worth because the degree has not suffered as an entrance ticket for the type of jobs plaintiffs hoped to obtain, is entirely too speculative and remote to be quantified as a remedy under the law.  This is especially true here since there has been a supervening event, the 2008 Great Recession and its aftermath, which has reached havoc throughout the legal job market and upset the plans of most recent law graduates wherever they attended law school. 

In the Thomas M. Cooley Law School action, Judge Gordon J. Quist of the United States District Court for the Western District of Michigan dismissed the students’ case.  In doing so, the court concluded as follows:

The bottom line is that the statistics provided by Cooley and other law schools in a format required by the ABA were so vague and incomplete as to be meaningless and could not reasonably be relied upon. But, as put in the phrase we lawyers learn early in law school–caveat emptor.

There does not appear to have been an appeal of either ruling.   Apparently, the concept of personal responsibility is still alive and well.  Well, for lawyers and law students at the least.  

Trial Tactics from Apple v. Samsung

Posted in Appellate Work, Trial

As you may have heard, Apple is suing Samsung.  There is no shortage of coverage of the daily happenings of trial including some very good technical analysis of the issues.  Apple is alleging that Samsung stole its intellectual property.  But one thing no one can steal is Conan O’Brien’s intellectual quirkiness.  His spoof of the dispute is very funny:

This week, one development that was reported is the histrionics of a lawyer “begging” the judge to admit an item of evidence.  One commentator on this issue (and others) analogizes it to “working the refs.”  That age old tradition seems to be an accepted part of sports.  In fact, some argue that it works wonders.  How about in the legal world?  Can lawyers (coaches) advocating for clients (players) “work” the Judges (refs) before whom they appear?  One commentary suggests that while it may not garner any favorable results from the trial judge it could pay off in the event of appellate review.  I’m not sure I agree with the view that such actions will carry much weight on appeal (or with the trial judge for that matter).  It seems a bit to me like “strenuously objecting” with the exception that the Samsung event apparently was not in front of a jury: 

Nonetheless, in the court of public opinion, displaying such a strong belief in the crucial nature of certain evidence could win over consumers which really may be the point.

When Technology Attacks: How Not Knowing the E-Filing Rules May Lead to Problems

Posted in Trial

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

By Cathy Trent-Vilim:

As a practicing litigation attorney, you have probably noticed the courts’ growing reliance on technology to manage litigation files, including the filing of court documents.  Are you familiar with Nebraska’s rules for electronic court filing, Neb. Ct. R. §§ 6-401-419?  If not, you might unwittingly be committing malpractice. 

The potential downside of court-utilized technology recently came up in the “Smith” case. In Smith, the plaintiff had two years from the date of her alleged botched medical procedure to file suit. Exactly two years after the procedure, the plaintiff’s attorney attempted to electronically file (“e-file”) a complaint with the state district court.  Unbeknownst to the attorney for several days, the filing was rejected.  The defendant doctors moved for summary judgment on their statute of limitations defense. 

In opposing the motion, the plaintiff produced a Filing Submission Receipt showing that her attorney had in fact attempted to file the initial complaint at 4:49 P.M. on the two year anniversary (a Friday).  The following Monday, however, the plaintiff’s attorney received the rejection notice.  The original submission had not been accepted because it was filed in Word format instead of as a .pdf document.  According to the plaintiff’s attorney, the firm set up its e-filing account on the very day it attempted the original submission and was unaware of the e-filing formatting requirements.

Nebraska’s e-filing rules do permit courts to give attorneys a reprieve in certain technology-related circumstances.  However, they also expressly provide that

. . . no order may be entered under this rule which expands the statutory time period for commencing an action or perfecting an appeal unless there is an affirmative showing that the failure to make a timely filing was due solely to an E-Filing System internal transmission error or a processing error by the court clerk.

Neb. Ct. R. § 6-414 (2008).  Since the e-filing failure stemmed from user error, and not a problem with the e-filing system or a failure by the court clerk, the rules prohibited the court from expanding the limitations period by back-dating the correctly-filed complaint.  As a result, the plaintiff’s claim was time-barred; and her attorney may be finding himself on the receiving end of a malpractice claim.

Smith serves as a useful reminder on several fronts:

  • NEVER – and I mean never – wait until the last minute to initiate a new lawsuit;
  • If you are in a time-crunch, be careful about using a new technology for the first time;
  • When using new technology, check for online resources to help you use it; and
  • Take time periodically to review the procedural rules and local court rules for new rules or changes to existing rules.

Whether we like it or not, courts’ use of technology is here to stay.  As a result, attorneys need to be as vigilant in staying abreast of changes in technology as we are in staying updated on substantive changes in the law.  If not, we do so at our own peril.

Yet Another Blog about the Roger Clemens Trial

Posted in Cross Examination, Direct/Redirect Examination, Trial

Much has been written about the trial of Rogers Clemens.  While I prefer not to second guess strategies or debate whether Clemens is really innocent as opposed to simply not guilty, I believe the coverage afforded this trial provides some insight and reminders for lawyers who try cases.  One such thing was Judge Walton’s decision to allow jurors to propose questions to be asked of witnesses.

I have been involved in several trials in which a judge allowed the jurors to submit questions they would like to ask the witness.  If handled properly (more on that in a moment) it can provide a good insight into what is on juror’s minds.  This can allow lawyers for both sides an opportunity to address the line of thinking with future witnesses or address a proposed question in the closing argument.  While the Judge may rule some questions should not be asked, those unasked questions still provide insight into what the jury (or at least one juror) would like to know.

As to the procedure to handle the proposed question I believe the Judge should act as gatekeeper in the eyes of the jurors.  In other words, the questions should be gathered at the end of the examination by all attorneys and any objections should be addressed outside the hearing of the jury.  If one party or another object to the question the party can make that objection to the Judge without running the risk that a juror will be offended by that party’s objection to their question.  The only thing the jurors should hear, in my opinion, is 1) the question or 2) that the Judge has decided that the question should not be asked.  While not fool-proof, this process seems to me to best protect the process when jurors are injected into situations dealing with rules of evidence and constitutional rights which are implicated by questioning witnesses.

What Role Can Statutes Play in Determining A Duty in Negligence Actions?

Posted in Legislation

Most people have heard the term “negligence” but many do not understand exactly what that means.  In Nebraska, as in most states, for actionable negligence to exist there must be 1) a legal duty on the part of the defendant to protect the plaintiff from injury, 2) a failure to discharge that duty, and 3) damage proximately resulting from the undischarged duty.  The threshold inquiry in any negligence action is whether the defendant owed the plaintiff a duty.  The question of whether a legal duty exists for actionable negligence is typically a question of law dependant on the facts in a particular situation.

What does that mean?  It means that Judges decide whether a duty existed at all.  Some duties are evident; what some might call common sense.  For example, we have the duty to drive our cars in a manner that does not cause injury to others.  That duty can be violated numerous ways including texting, looking away from the road or speeding.

Sometimes there are statutes on the books which can create duties.  In Nebraska, the test for determining whether statutes create duties is:

  1. whether the statute is enacted to protect a class of persons which includes the plaintiff;
  2. whether the statute is intended to prevent the particular injury that has been suffered; and
  3. whether the statute is intended by the Legislature to create a private liability as distinguished from one of a public character.

Consideration of the Legislature’s purpose, also known as legislative intent, in enacting a statute is central to the analysis of whether the statute defines a duty in tort.  Sometimes, the purpose is in the statute itself.  Often, however, determining what the law making body intended requires looking at the transcript of the actual floor debate when a bill is introduced.

Cyber Gripe – "Anonymous" Comments Could Cost You Millions

Posted in Discovery, In-House Counsel

Two weeks ago, I noted the Internet has become an area where individuals with access to the Internet can effect peoples’ lives and businesses.  Just about every website, blog and Internet forum provides individuals with the opportunity to comment on anything subject matter.  The comments are also often made under the guise of an “anonymous” username which provides little to no personal information about the commenters.  Be careful, your comments might not just be anonymous and they could cost you millions.  A lesson recently learned proven in the state of Texas.

The story behind the lesson started with Mark Lesher, his wife Donna Lesher and their ranch hand being accused of sexual assault by a women.  Before an indictment was issued, anonymous posters on attacked the Leshers and their ranch hand.  The comments included allegations of sexual deviant conduct and drug dealing.  The Leshers and their ranch had were subsequently acquitted of all charges following a criminal trial.

Mark and Rhonda Lesher filed a defamation suit against the anonymous posters.  After filing suit, the Leshers were allowed access to the IP addresses for the posters.  This led to the identity of the computers used to make the comments.  After a trial, the jury entered a verdict in favor of the Leshers totaling $13.78 million against six different defendants (all of whom were tied to the accuser which led to the criminal indictment).

So, think twice the next time you make a comment about anything on the internet under the guise of anonymity.  Even if you think you are just providing your anonymous personal opinion about something, it just might cost you if you go to far.

Dangers of Email in Discovery

Posted in Discovery

I recently read a couple of articles which seemed to be written for each other.  The first article recounted the downward spiral of a discovery issue between two attorneys.  The issue had to do with simply scheduling depositions.  Without giving a blow by blow (almost literally) it is enough to say that one lawyer clearly was having a bad evening and did not appreciate that other’s requests for deposition dates.  If you read the full email chain you can see that the back and forth exchange quickly, and alarmingly, got out of hand.

The second article addressed a time management process aimed at dealing with the many emails received throughout a typical day.  After having just read about the discovery dispute mentioned above the portion of this second article that jumped off the page to me was this:

I also do my best never to go back and forth with someone on email about something more than two or three times. If it’s gone that far, it’s usually a better idea to pick up the phone.

It sure seemed to me that the suggestion to pick up the phone may have put out the fire on what turned out to be a total unprofessional mess of email discourse between two lawyers.  Clearly the email exchange in the first article went on far too long before someone either 1) disengaged altogether, or 2) picked up the phone.

Kyle Wallor recently posted about what litigators could learn from the Stanley Cup Playoffs.  Lawyers can also learn from these articles.  Consider that picking up the phone early can sometimes prevent situations from escalating.

Procrastinators Beware – Brief Extensions Are No Longer A Given in the Nebraska Appellate Courts

Posted in Appellate Work

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

By Cathy Trent-Vilim:

We’ve all been there before.  Gazing at the foot-high stack of transcripts and bill of exceptions, you decide to put them aside and work on something else that day.  Then that day turns into a week, which turns into two weeks, and before you know it, you’re scrambling to meet your appeal brief deadline.

In the past, this wouldn’t have been a problem.  You’d simply file a motion (often times stipulated by opposing counsel) with the Court.  As long as your case was not an advanced case (criminal, worker’s compensation, unemployment compensation, certified questions, original actions, custody of minor children, juvenile cases, and a few others), you could practically bank on the Court granting your motion.  Not anymore! Automatic brief extensions are a thing of the past.

I recently received a notice from the Court regarding a case pending before the Court of Appeals in which the Supreme Court and Court of Appeals announced that “[d]ue to the reduced number of cases awaiting submission to the Supreme Court and Court of Appeals, and as part of the courts’ continuing efforts to reduce case processing time, future requests for brief date extensions will be closely scrutinized.” (Bold in original).  The Court further indicated that if an appellant defaults (fails to file a brief), a brief must be filed within 10 days of receipt of notice from the Court.  If not, the appeal is subject to dismissal.  Finally, the Court warned that “these rules will be strictly enforced.”

As a result, to obtain a brief extension, you must actually show “good cause” (“good cause” has always been required; but in the past it usually sufficed to show that your opponent  stipulated to the extension, that your case was not advanced, and that the motion was not being made for purposes of delay).  Now, “good cause” will likely mean an exceptionally long appellate record (i.e., several weeks of trial or hundreds of exhibits), unusually complex legal issues, or exceptional circumstances for the moving attorney (i.e., serious illness or death in the immediate family).

Given the Court’s admonition, plan your time accordingly and be sure you get your brief filed within the time provided by the Nebraska Rules of Appellate Practice.  If you anticipate a problem, get your motion for extension on file as quickly as possible.  You do not want to find out your motion was denied shortly before your deadline runs, or worse, after the deadline has already passed!  If so, you will have some ‘splaining to do.