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 [...]
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 [...]
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. LDM Partner Cathy Trent-Vilim discusses her recent case in this post. In appealing the judgment, Platte County [...]
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 [...]
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 [...]
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 [...]
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 [...]
The National Hockey League is presently holding the Stanley Cup Playoffs. As you may know, professional hockey is a an extremely physical sport which often includes physical confrontation. This is because all professional hockey players ferociously compete to secure the lone goal of each player in the NHL, having his name etched on the Stanley Cup alongside every other Stanley Cup Champion. Despite the physical and emotional intensity of competing [...]
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 [...]
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 [...]
On January 30, 2012, Todd Cooper authored an article for the Omaha World Herald about Douglas County Nebraska Juror No. 22, who was found to be in contempt of court for consulting his smart-phone during the course of first-degree sexual assault trial. Juror No. 22 was discharged from the jury and subsequently sentenced to 40 hours of community service. Mr. Cooper's article discussed Juror No. 22's work emergency wherein if he did not stop a train with an [...]
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 [...]
On January 11, 2012 the United States Supreme Court determined the "ministerial exception" provided by the First Amendment precluded an employment discrimination suit by a "called" teacher, Cheryl Perich, in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. As part of her job duties with Hosanna-Tabor, Perich taught a religion class four days a week and led students in prayer and devotional exercises each day. After Perich was diagnosed with narcolepsy and had [...]
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 [...]
As trial lawyers, events often move quickly and we make sure the substance of a particular position is made in order to protect the interests of our clients. Unfortunately, substance doesn't always win the day and there are times when form is extremely important. An example of this is the Nebraska Supreme Court's opinion in State v. Ford, 279 Neb. 453, 778 N.W.2d 473 (2010). During the course of this criminal trial, the [...]
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 [...]
One of the most dangerous discovery vehicles is requests for admission, or § 6-336 of the Nebraska Rules of Discovery. In Tymar v. Two Men and A Truck, 282 Neb. 692, __ N.W.2d __ (2011), the Nebraska Supreme Court provided a reminder of the dangers of failing to properly address requests for admission. As a quick refresher, a party must timely respond to requests for admission as provided in the pertinent portion of § 6-336(a) to avoid having the requests be [...]
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 [...]
The world of health insurance and medical billing write-offs has created a hot topic in the world of personal injury trial practice, whether the measure of medical bill damages a personal injury plaintiff may recover is the amount billed by the provider or the amount paid and accepted as full and final payment by the provider. The issue has been addressed by legislation in many states. Some attorneys believe Nebraska's Unicameral Legislature addressed the issue [...]
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 [...]
This is Part IV in a four part series. Part I, Part II and Part III. Another flaw in per diem arguments is that they suggest pain can be equated to dollars and that a formula will justly compensate a plaintiff. Note to the jury that unless plaintiff has established with credible evidence why a certain dollar amount should be applied to a particular time segment, perhaps the jury should [...]
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 [...]
This is Part III of a four part series. Part I, Part II and Part IV. The jurisdictions that approved per diem arguments generally fall into two categories, the first declare per diem arguments proper; the second declare them proper only if accompanied by a cautionary instruction. Courts holding per diem arguments proper, or proper with caution, do so for the following reasons: Per diem arguments do not constitute the introduction [...]
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 [...]
This is Part II of four part series. Part I, Part III, and Part IV. The Baylor and Dowd decisions set the stage for the Nebraska Supreme Court’s opinion in Richardson v. Children’s Hospital, 280 Neb. 396, 787 N.W.2d 235 (2010) and Nebraska joining the majority of Courts which approve per diem arguments in one form or another. In Richarson, Plaintiff made a blatant per diem argument. During Plaintiff’s closing, counsel [...]
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 [...]
This is a four part series discussing the history and use of per diem arguments in the state of Nebraska. Part II, Part III and Part IV. Before the Nebraska Supreme Court’s outright approval of per diem arguments in Richardson v. Children’s Hospital, 208 Neb. 396, 787 N.W.2d 235 (2010), I often found myself channeling Oliver Stone’s chain smoking conspiratorial reincarnation of David Ferrie in the movie JFK during my attempts [...]
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 [...]
