A party who represents herself... You know the rest...

I'm reading a case about a pro se plaintiff who was sanctioned for her behavior at trial. The case is somewhat interesting and may stand for the proposition that a party can be liable for the opposing party's legal fees based upon his or her misconduct, even in the absence of a contract or statute providing for legal fees. The case is Harvey v. Carponelli, 117 Ill.App.3d 448 (1st Dist. 1983). There's also good language in there about holding pro se litigants to the same procedural standards as attorneys.

Anyway, all I really wanted to point out is the following paragraph from the case. For some reason this description of the trial made me laugh out loud. I'm just glad it wasn't me who had to oppose this lady.

"Plaintiff's first witness was called and examined. The trial judge found that the entire line of questioning by plaintiff as pro se counsel indicated a lack of awareness of the issues raised by [her] in her fourth amended complaint. The entire testimony of this witness was stricken as irrelevant. Next, plaintiff called herself as a witness. After taking the stand, she was allowed to read questions to herself from her notes for 1 1/2 days. She asked herself at least one question to which she answered "I don't know." 

Oh man... One and half days? And she was answering "I don't know" to her own questions!! I would have had a heart attack. 

"Turn Every Goddamn Page"

Today's post at the Litigation and Trial blog is titled "How to Excel at the Basics as a Young Litigator."  The post gives several tremendous tips for litigators, young and old alike.  

My favorite tip is called "Turn every goddamn page."  The author points out that most trials are not won on a "Perry Mason moment" where plaintiff's counsel destroys a key witness on cross-examination and elicits a damning piece of evidence that completely seals the deal.  Rather, the lawyers who win really good cases do so long before the trial even starts.  Here is my favorite passage of today's advice:

Cases on TV are won through brilliant, impromptu cross-examinations at trial. Real cases are won through dogged investigation and by relentlessly investigating until you have both found and turned every goddamn page. 

How do you do that?  

First, ask your client to give you every document they have, and to explain what they are. Second, serve the opposing party with custom-tailored interrogatories and requests for documents asking for everything. You won’t get everything so, third, serve requests for admission demanding they admit those documents are all the responsive documents. That will get you more, but still not everything, so, fourth, notice the deposition of the records custodian for the defendant, at their place of business, with custom-tailored document classes identified. Fifth, when there, ask the deponent if they’re the most knowledgeable person about each class and, if not, ask who is, and then get that person to come down (remember, you’re already there and so are they), and ask them, and keep going until you’re confident you have everything you can get. 

Did I mention you also need to scour the Internet, and to call other attorneys who litigated similar cases? 

It’s a laborious, time-consuming process, and it’s not necessary for every case. But you need to learn how to dig for documents, and then, once you have them, how to develop the patience to “turn every goddamn page.”

Lessons Learned from Vincent L. Gambini

Today is the 20th anniversary of the release of the movie My Cousin Vinny.  This movie is absolutely hilarious and many, many lawyers praise its realistic portrayal of the criminal trial process.

The Abnormal Use blog has written a terrific series commemorating the movie.  One of the posts outlined six lessons that lawyers can learn from Vincent L. Gambini.  You should check it out.  The original post is HERE.

What's the next big trial?

Casey Anthony sure got everyone interested in the legal system for a week or two.  To keep that momentum rolling I have selected a couple of interesting trials from around the country to tell you about.  The first one doesn't have the nationwide allure of a dead toddler and the Miami nightclub scene, but it does involve a whole lot of money and has a similar theme of governmental overreaching.

The first case is United States of America v. Ten 1933 Double Eagle Gold Pieces.  In 1933 President Franklin D. Roosevelt ordered the destruction of all Double Eagle coins shortly after they were minted due to economic concerns.  A very limited number of coins escaped destruction.  A massive Secret Service investigation during the 1940s and 1950s linked every known Double Eagle to one man, Isreal Switt, but the government decided not to prosecute him. 

Isreal Switt died in 1990.  His estate was probated without complication.  But in 2004 his daughter discovered a previously unknown safety deposit box that contained 10 Double Eagle coins.  She took the coins to the U.S. Treasury to have them authenticated, but the Government seized the coins and initiated forfeiture proceedings in federal court.  The trial started last Friday.

The Government argues that the coins were never released into circulation by the Treasury and were supposed to be destroyed, so any surviving coins must be stolen.  The daughter argues that there were several legal ways that Gold Eagles could have left the Mint in 1933.  The daughter also argues that the Government should have to prove that these particular coins were stolen, not just that all Gold Eagles must have been stolen.

The daughter has precedent on her side.  The only other Double Eagle to surface in the last 60 years occurred in 2000 when a British coin dealer was arrested by Secret Service agents during a sting operation.  The coin dealer was acquitted of all charges, then sued the government for the return of his coin.  As part of a settlement in that case, the government authorized an auction of the coin.  It brought $7.6 million. So the daughter is looking at a big payday in this case if she can prevail. The trial is supposed to conclude this week.  I'll try to follow up with a report.

Information Acquired from Mainstream Internet Sites is Reliable Enough to Support a Request for Judicial Notice

In People v. Clark, No. 2-09-0102 (December 16, 2010), the Second District Appellate Court upheld the conviction for a drug transaction that took place within 1000 feet of a public park, relying in part on a Google Map submitted by the prosecution. 

The court stated "information acquired from mainstream Internet sites such as Map Quest and Google Maps is reliable enough to support a request for judicial notice," thereby holding that these maps should be presumptively admissible in lawsuits.

Admissibility of Writings and Recorded Statements

I am slowly going through the new Illinois Rules of Evidence, which will become effective on January 1, 2011.  I will be writing about some of the more interesting ones.  The new rules are on the Supreme Court's website here.

Rule 106 concerns the remainder of writings and recorded statements. Here is the rule:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

This would probably not be an issue in a case where you have completed discovery. That way, if my opponent offers only part of a document, I will simply offer the rest of it during my case because I will have a copy going in.

But this rule could become useful in small claims court. I have seen lawyers try to introduce only parts of documents a couple of times. Mainly in credit card cases where the plaintiff only seeks to admit certain paragraphs or pages of the 25 page cardholder agreement.

With an objection under this rule, you would hope that they don't even have the complete document with them. That way even the portion that they have should be excluded.

New Illinois Rules of Evidence

The Illinois Supreme Court has announced the Illinois Rules of Evidence, which are effective January 1, 2011. 

Click here to see the new rules on the Supreme Court's website.

Coaching Witnesses.

A recent federal case out of the Fifth Circuit considered how far lawyers can go when coaching their witnesses prior to a trial or deposition. The case Ibarra v. Baker sent a strong reminder that witness preparation has its limits.

In that case, the court upheld sanctions against the attorneys who were defending police officers in a Section 1983 case. The defendants asserted that they had reasonable suspicion for detainment of the plaintiff, while the plaintiff alleged otherwise.

The district court found that the defense lawyers had essentially planted two new terms of art into the case through their preparation of two witnesses. The witnesses began using the terms "retaliation" and "high-crime area" late in the lawsuit and only after preparation by their attorneys.

The late timing of the appearance of these terms, combined with some notes taken by one of the witnesses during the preparation, led the district court to find that the attorney's conduct was sanctionable.

This reminds me of the great book Anatomy of a Murder by Robert Traver that we had to read in Crim Law I with Professor Schmall. You will recall the great scene in that book where the defense lawyer counsels his client on the different mental states required to charge different levels of murder. After hearing his lawyer's explanation, the client in that book "remembers" exactly what happened the night the man who raped his wife got murdered. Great book.

Authenticating Web Pages as Evidence

This is an excellent article concerning the authentication of web pages for evidentiary purposes written by M. Anderson Berry and David Kiernan. An excerpt--

Plaintiff sues your client, claiming that his injuries have significantly affected his lifestyle. He is unable to work, travel or bowl. Not surprisingly, his spouse alleges loss of consortium. On the eve of trial, you discover pictures and other details on a social networking website about plaintiff's recent trip to the International Bowling Museum & Hall of Fame, including a picture of plaintiff proudly holding a fluorescent orange bowling ball and a four-foot tall gilded trophy dated four days earlier. As you approach the witness with printouts of the web pages, you are stopped in your tracks: "Objection, lack of foundation."

The article contains tips for authenticating web pages pursuant to the Federal Rule of Evidence, easily adaptable for state court arguments. It also has an interesting section about court cases involving the Internet Archive, a digital archive of web pages that are no longer active.

What is the real Rule Number 1?

This article talks about a criminal case in Washington state where the jury came back with a not guilty verdict. The defense lawyer then asked for the jury to be polled. When the first juror was asked to confirm the verdict, she said that she didn't actually agree with it and there must have been a mistake. After further deliberations, the jury found the defendant guilty.

This legal blog suggests that the defense lawyer violated the practice of law's Number 1 Rule, which is "when things are going in your favor, STOP TALKING!" The blog also suggests that there are at least two other Rules Number 1, "always get paid," and "avoid a personal jail sentence."

I can't decide which Rule Number 1 is my favorite. I think the one about getting paid. What about you guys? Or does anyone have any other suggestions for a new Rule Number 1?

Media Bias.

I tried my first case in front of the media yesterday. A reporter from the Naperville Sun was in the courtroom for the nearly three-hour trial, although I did not know that at the time.

Anyway, we won the case, but the article glorifies the defendants' unfounded complaints. I could not believe the testimony coming from the defendants. The judge specifically found that the defendants' testimony was not credible. We prevailed on every issue. Then this article comes out portraying my client as the bad guy. This particular paper has been after my client for a long time.

A prime example of biased reporting here.

The Drew Peterson Rule

Will County State's Attorney James Glasgow received a favor from outgoing Governor Rod Blagojevich when the former governor signed into law the controversial "Drew Peterson" exception to Illinois' hearsay law.

The relevant portion of the "Hearsay exception for intentional murder of a witness" is set forth below:

"(a) A statement is not rendered inadmissible by the hearsay rule if it is offered against a party that has killed the declarant intending to procure the unavailability of the declarant as a witness in a criminal or civil proceeding.

(b) While intent to procure the unavailability of the witness is a necessary element for the introduction of the statements, it need not be the sole motivation behind the murder which procured the unavailability of the declarant as a witness."

So, in order to use Ms. Savio's statements against him, the State must prove that Drew Peterson killed Ms. Savio "intending to procure the unavailability of the declarant as a witness in a criminal or civil proceeding." That is legalese for he killed her "to prevent her from testifying against him."

Surely the State is not going to say that he killed her to prevent her from testifying at the upcoming murder trial. That is ridiculous. So, they must plan to argue that he killed her to prevent her from testifying against him in their divorce case. I recall reading that she was found dead in the bathtub "shortly before their divorce was finalized." Nothing that I read had any more detail than that. It is unclear whether there were any hearings scheduled in their divorce case at which Ms. Savio was expected to testify. Of course, there is always the possibility that she could testify at the prove-up, so I guess until the divorce was finalized there was always the possibility that she would testify at least once more.

So, unless this law is declared unconstitutional before trial, it is likely that Ms. Savio will be allowed to testify from "beyond the grave." Still, I have my doubts as to the strength of the state's case. It will really be embarrassing if they go to all this trouble to amend the state's criminal code to prosecute one guy, and still lose.

Hearsay exception for intentional murder of a witness. 725 ILCS 5/115-10.6.

Tips on the Oral Argument

Last night I was looking for some new cases to read up on, but instead I discovered a part of the Illinois Courts website that I didn’t notice before... the Oral Argument Audio Video Section. It’s interesting because you can definitely learn what to do and what not to do when presenting an oral argument. Personally, I welcome all sorts of public speaking opportunities (it’s partly why I chose to pursue this profession) I think its fun; and can undoubtedly create an opportunity to deliver a message in a way that was not there before.

So here are my educational tips to approaching the Oral Argument:
......pictures and videos included!

1. Be prepared!
The best thing you can do for yourself in an oral argument is to be prepared! If you know your argument, the cases which support it, and the order in which you will present your argument you have nothing to worry about!

Practical ways you can accomplish this:

Get organized! Figure out what you need and simply take what is necessary to the podium. I suggest your brief, a manila folder which neatly contains your presentation, Post-it-Notes, and a trusty pen (Post-it-Notes and Pens are not really necessary at the time of your presentation; rather they are useful to take notes as your opponent is speaking). ----Click for image----

Print your argument in short hand format (an outline), this will help you stay on track with your argument and in case you are forced to step out of your argument order you can quickly step right back in.
---Click for image---

List your cases, so if you need to cite them to the court it’s right in front of you. And if you need to refresh you memory on a case it’s also right in front of you! ---Click for image---

Lastly rehearse your argument ...in front of a mirror if you have to! The key is to just do it! You want to work the kinks out so you won’t work them out in front of the judges.


2. Look good feel good!
Make sure you dress professionally (see image at the top). Looking professional sets the tone not only for yourself but for those who are going to be listening to you. Avoid “flashy colors” (i.e. hot pink, lime green), unnecessary jewelry, and bothersome hairstyles. The last thing you want the court to be paying attention to is the choice of your attire, your blindingly reflective jewelry you refer to as “bling”, or the constant hand gestures moving your hair out of your face. Strike the balance between looking professional and feeling comfortable. Oh and if you have to ask, “Is this appropriate?” It’s probably not!


3. Respect
Respect the court and its procedure! Simply knowing these few points will increase your credibility and respect in the eyes of the courts and your peers.
Don’t approach the bench until asked to.
Begin with “May it please the court, my name is (your name here) and I represent the (party name and role in lawsuit).
Request time for rebuttal; NEVER assume your going to get time! (As a matter of fact in most courts if you don’t request it...YOU WAIVE IT!)
Briefly and concisely, introduce with out looking at your notes the following: (Yes that means memorize these!)
The issue and your clients stand (Make this great! You command the attention at this point.)
The reasons in which you will discuss why your client should prevail (Make eye contact)
The most relevant facts (Be brief because the court usually wants to skip passed these)
Now take a breath and begin your points in detail (You can look at your notes now, but don’t stare at them!)
When speaking, avoid unnecessary hand gestures, try keeping in front of you on the podium.
Lastly if a judge speaks you zip it! No matter what you are saying! (Its that respect thing again)

In an effort to show you what to do and what not to do I have written some points and illustrated them with video links from our very own Illinois courts Website. Unfortunately the videos are more than half an hour each so I only refer to the good and not so good that occurs in the first two minutes of each oral argument.



Video 1: Weather-Tite v. University of St. Francis
The good:
She waited until she was requested to approach the bench.
She dressed professionally
She was organized and had only what she needed at the podium
She began with the “may it please the court”
She had some good eye contact
She stops speaking when the judges begin speaking

The not so good:
She forgot to mention who she was?!
She began to get flustered, it would have been better if she memorized her introduction
She had to mover her hair behind her ear. (Not a huge deal...but try to prevent having to do that)
She was nervous...and it showed.


Video 2: Stern v. Wheaton-Warrenville Community Unit School District 200
The good:
He had a good introduction overall!
He dressed professionally

The not so good:
Really did you need all those papers?


Video 3: Turner v. Memorial Medical Center
The good:
He approached the podium when asked
Good classic opening sentence

The not so good:
Lack of eye contact
Unnecessary hand gestures
Really do you need all those papers and pens?


Video 4: Halpin v. Schultz
The good:
He approached when asked
He gave a good history of the case
He had his documents neatly organized and limited

The not so good:
There was no classic introductory sentence
You really don’t have to tell us who present in the court
Skip the metaphors....you lost us for a minute
There were unnecessary hand gestures
He did not have the codes handy: (see 2min 5 seconds)


Video 5: Beelman Trucking v. Workers' Compensation Commission
The good:
He dressed professionally
He spoke in a respective tone

The not so good:
He approached the podium before asked to
Really did you need all those papers and folders up there? (unorganized)
He did not begin with the classic sentence
There were unnecessary hand motions!
There was a lack of eye contact


Video 6: In re: Cutright
The good:
He dressed professionally.
He brought minimal papers to the podium.
He approached the podium when asked.
He used the classic introductory sentence.
He clearly stated his clients stand and the issues in a clearly spoken and concise manner.

The not so good:
He could have made better eye contact.
He nervously scratched his cheek...repeatedly.
He nervously played with his ring.



Lastly here is a young law student, Victoria Corder, who in my opinion does a pretty darn good job!--->Video



As always opinions & comments are welcome!

$325,425 seems lower than $325,000

Click here to read a very informative article written by David Davis, a trial consultant in Boston. His article titled "Some Juror Rules for Determining Damages" summarizes research conducted by economists at several universities relating to how jurors perceive damages at trial.

The most interesting portion of the article is that specific numbers seem lower than round numbers. For instance, $325,425 seems lower than $325,000 at first glance to most people. The author recommends asking for specific sums from juries for all types of damages, including punitives. Even if you are just making the number up, do not make it end in zeros.

Discovery deposition of deceased plaintiff excluded from trial

The Illinois Trial Pracice Weblog has a great summary of a recent 5th District case which outlines the limited areas in which a discovery deposition transcript can be used as substantive evidence at trial.

To summarize briefly, the plaintiff in Berry v. American Standard, Inc. passed away before trial and before his evidence deposition was taken. He had been deposed in a discovery deposition however. The trial court barred the use of the discovery depostion at trial because "Supreme Court Rule 212(a)(5) bars that use where the deponent is a party to the action."

In affirming the trial court, the appellate court noted that none of the exceptions in Rule 212(a) applied (impeachment, admission, as an exception to the hearsay rule, for purposes for which affidavits may be used, or as former testimony if not by a party). The court also noted the purpose of the rule: "knowing in advance that a deposition is for discovery only and hence of limited availability, counsel ordinarily do not urge technical objections, and the taking of the deposition proceeds informally and expeditiously."

Please click here to read the original post from the Illinois Trial Practice Weblog.