Last week I noted that I would be assisting with the AAJ Regional Trial Competition held in Omaha. I served as a judge for what was, in my view, a very close round between two good teams. Here are some of the trial tactics I was reminded of: Do not assume the presiding judge knows your case as well as you do. This particularly true when responding to an objection [...]
This week Omaha plays host to a regional trial competition sponsored by the American Association for Justice. Nine law schools from the Midwest region will send a total of 16 teams to compete. I, along with many of my Omaha attorney colleagues, will serve as performance and presiding judges for the rounds. This is a big moment in the lives of the participating law students. It is where they have [...]
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. 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 [...]
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 [...]
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. [...]
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 [...]
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 [...]
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 [...]
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: https://www.youtube.com/watch?v=YciM_54HzZk&feature=player_embedded This week, one development that was reported is the histrionics of a lawyer [...]
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 [...]
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 [...]
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 [...]
This post is authored by Dave Schmitt, a partner in LDM’s litigation department. Mr. Schmitt draws upon his years of trial experience to discuss some of his thoughts on jury selection and provide a tool for selecting your next jury. By: Dave Schmitt: Parties resolve disputes through litigation and the trial process. Typically a dispute in a legal case is decided by a jury rendering a verdict at the conclusion of the [...]
Last week I discussed what type of information is considered “personal information” under the Consumer Notification of Data Security Breach Act of 2006; Nebraska Statutes § 87-801. If you are storing “personal information” which is subject to a data security breach, the Act requires that the person or entity storing that information provide notice of the breach to those whose personal information is being stored. How do you give notice [...]
I am taking this opportunity to add a second post on a Friday. This post is a break from the sports themed Friday format of this blog. And the break is for good reason. Actually two good reasons (but one better than the other). First and foremost, this week (on May 1) marked the annual “Law Day” celebration. As my colleague, Jason Grams, explained to a class of fifth graders to [...]
Recently, I posted about the requirements of the Data Protection and Consumer Notification of Data Security Breach Act of 2006; Nebraska Statutes § 87-801. What does this Act mean for business and individuals in Nebraska? In my last post I noted that the Act requires notification to individuals if there is a security breach involving “personal information.” But how do you know if you have “personal information?” The Act defines [...]
In my post last week I mentioned that Nebraska has a law call the Data Protection and Consumer Notification of Data Security Breach Act of 2006. It is found in the Nebraska Statutes beginning at section 87-801. The name is mouthful. But while it is clear that a simple name was not the goal of the Act, making consumers aware of any potential data breaches of their personal information is. The [...]
Recently, it was reported that probation files in the custody of a probation officer were stolen (along with the officer’s car in which the files were left). Those records were later recovered (along with the car). Whether records or information is stolen, or simply lost, this is a reminder of a real risk that litigators face. We frequently are traveling to and from depositions, meetings, hearings and the like. We also frequently transport paper [...]
By now nearly everyone has heard about the “Pink Slime” debate involving Beef Products, Inc. A recent article in the Omaha World Herald discussed BPI’s admitted miscalculation about the publicity its product was receiving. The article suggests that BPI did little to get out in front of the issue by actively combating the misnomer “pink slime” and the information that was being reported about it. Reading about that reminded me of an [...]
Nebraska basketball has hired Tim Miles as its next Men's Basketball Coach. Miles comes to NU after five years at Colorado State. His tenure at CSU culminated with the Rams' appearance as an 11 seed in this year's NCAA tournament. They lost to Murray State after having a 24-23 lead at half time. After watching the press conference I am excited about this hire. This is not the splash some might [...]
A couple of weeks ago Kyle posted an article about lawsuits by law students against law schools. The suits had to do with allegations of the dim employment prospects and the schools’ alleged attempt to artificially brighten the look of those prospects by manipulating job placement data. Law schools have also received some negative commentary about the cost of attendance and the utilization of funds generated by law students. That presents an [...]
This is part III in a series of posts authored by Stacy Morris, a partner in LDM’s litigation department. Mr. Morris has agreed to draw upon his experiences with the False Claims Act to provide information about the growing issues for businesses and individuals. By Stacy Morris The allure of a claim under the FCA is due in large part to the built-in damages provisions. There is a two-step process [...]
The next series of posts are authored by Stacy Morris, a partner in LDM’s litigation department. Mr. Morris has agreed to draw upon his experiences with the False Claims Act to provide information about the growing issues for businesses and individuals. By Stacy Morris: A recent opinion from the D.C. Circuit illustrates not only the reach of the False Claims Act (31 U.S.C. § 3729-3733 “FCA”), but a reason why [...]
In a post following my most recent jury trial I noted the importance of listening. As I stated, this may seem elementary but it is not. On Tuesday, Kyle recounted his recent experience serving as a guest judge at a client counseling competition. As his first point he also noted the importance of listening. Now, there is another endorsement for the importance of listening. Nebraska's very own Bo Pelini has engaged an outside consulting [...]
Whether you are a fan of college sports, or sports in general, you have probably heard about the downfall of Jim Tressel following the scandal involving some of his players allegedly trading memorabilia for free tattoos--an NCAA violation. One of the individuals involved with the story was a lawyer by the name of Christopher Cicero. As reported by the Associated Press, Mr. Cicero sent Coach Tressel an email warning him of the [...]
If you have followed this blog over the last week you know that I was in a week long jury trial a couple of weeks ago. Here are four of the things I was reminded of during that trial: 1. Jurors take it seriously. Whether during voir dire or after being selected, almost all jurors, even those who would rather be elsewhere, seem to treat the process with the seriousness [...]
My trial from last week is concluded but today's post is part 2 of Kara Jermain's article discussing the parol evidence rule. My thanks to Kara for her work on this project while I was busy with trial. Last week’s article discussed the parol evidence rule. The parol evidence rule excludes outside evidence of a prior or simultaneous agreement if it is not contained in contracting parties’ final written agreement. The rule can [...]
Brian Brislen is in trial this week, and Kara Jermain of the Lamson, Dugan and Murray Litigation Department authored this week's Thursday blog. While the “parol evidence rule” may sound like legal mumbo jumbo that could not possibly affect you or your business in any way, the rule has serious consequences for anyone entering into a contract. The rule typically deals with a situation where parties begin negotiating verbally or even informally [...]
My post for last week discussed opening statements and the propriety of arguing rather than simply stating facts. No such problem exists during closing arguments. But what is the rule about lodging objections during closing? To me, the first rule is to make sure that objecting during a closing is really warranted. Much of the time it is not. Beyond that, if you have a circumstance which requires an objection [...]
Every jury trial begins with voir dire and selection of the jurors who will decide the disputed issues of fact. It is during this time that the jurors begin to learn what the case is about; what facts may be presented. The first opportunity a lawyer has to fully present the facts to those jurors, however, is opening statement. Though it may seem like it should go without saying, the opening statement should [...]
When dealing with a large amount of documents during litigation parties often will want to summarize the contents. This could happen in the context of bank statements, payroll information, invoices or just about anything else you might think of. The rules of evidence allow for an alternative to dumping a pile of paper on the Court or a Jury during trial. Specifically, under Rule 1006 (27-1006 in Nebraska) lawyers can, [...]
I have written a couple of recent posts related to juror conduct as it pertains to use of electronic devices or social media. A recent criminal jury trial in Omaha provides another look at juror conduct and how to deal with potential issues. The case involved an attorney moving to have a sitting juror dismissed from service. In a first-degree felony murder trial a juror who later said he disagreed with the felony murder [...]
Two weeks ago I posted about what can be done to mitigate juror’s use of electronic devices to obtain information about a case for which they serve as finders of fact. In it, I mentioned that jurors can be instructed to refrain from using such devices but also noted that it may be difficult to prevent all such occurrences. Attorney Kimberly D. Young of Little Rock, Arkansas, wrote an article published yesterday [...]
This last Tuesday I volunteered to serve as a performance evaluator for the Nebraska Bar Foundation’s State High School Mock Trial Championship. The competition featured twelve state qualifying teams from high schools across Nebraska each seeking to be named the state champion thereby entitling it to represent Nebraska at the National competition to be held in Albuquerque, New Mexico, in May. The round to which I was assigned feature two [...]
Nearly everyone, it seems, has a smart phone. Access to information no longer comes from the morning or evening newspaper. Information is refreshed by the minute through numerous on-line news sources. What impact does that have on a jury trial? The December, 2011, ABA newsletter, First Focus, has published an interesting article highlighting the ABA Judicial Division’s National Conference of State Trial Judges work to issue guidance to Judges and [...]
If you have followed this blog since it started earlier this fall you read our Friday Nebraska sports related posts. Yesterday, the ABA Journal posted its own sports related story. Author Debra Cassens Weiss reported on a deposition of former NBA superstar Allen Iverson. Apparently, AI was not very thrilled about the deposition or the lawyer taking it. The lawyer has apparently represented clients against Iverson in two prior cases. [...]
Last week I posted about the process for handling questions from jurors while they are in deliberations. I noted that Neb.Rev.Stat. § 25-1116 requires that the Judge contact the parties or their counsel about the question. The Nebraska Supreme Court has clearly stated that this is the process to be followed (See Nebraska Depository Inst. Guar. Corp. v. Stastny, 243 Neb. 36, 497 N.W.2d 657 (1993); In re Estate of [...]
After the heavy lifting of a jury trial is over the real work begins. Waiting for the verdict. If you are like me, any time the phone rings your stomach turns with anticipation that the Court may be calling to say the jury has reached its verdict. When you look at caller ID to see the Court’s number displayed the anticipation builds even more. But sometimes, the relief you get [...]
Like many, I have been a baseball fan since I was a kid. Thanks to a couple of random Dodger fans’ comments about renowned baseball good guy and two time MVP Dale Murphy and what was then the “Superstation WTBS,” this Nebraska kid became a big fan of the Atlanta Braves. The Capitol Avenue Club is a great blog about the Atlanta Braves. So, as the rest of the baseball [...]
I recently blogged about the need to show the jury the documents you choose to put into evidence when those documents match the testimony. Today’s blog addresses a couple of points that go along with that concept. The first pertains to witness preparation and the second is a reminder to general counsel and H.R. professionals about memorializing business transactions and events. Point One: How many emails do professionals send and [...]
As I have posted earlier, I have taught trial practice to a team of four third year Creighton University law students which culminates in a trial competition. This year we went to The National Trial Advocacy Competition hosted by the Michigan State University College of Law in East Lansing Michigan. Veronica Valentine McNally and the NTAC staff at MSU do a great job and it is always fun to visit [...]
I posted about the importance of laying proper foundation last week. As I noted, this topic is the starting point for the trial practice class that I teach at Creighton University’s School of Law. By the way, the team this year did a wonderful job at the competition. The team of Nick Depetro, Angela Franz, Abbie Schurmann and Erica Carr advanced to the Quarterfinals. There are 25 teams invited to [...]
This week I am in Lansing Michigan for a trial competition hosted by the Michigan State University College of Law in Lansing Michigan. As is the case every year, the team I have taught for Creighton University School of Law is comprised of four third year law students. The team has spent five nights per week for over a month preparing this year’s case problem. My “co-coach,” Amy Zacharias, a [...]
