2020 SC BAR CONVENTION

Trial & Appellate Advocacy Section

“On Your Feet Advocacy”

Friday, January 24

SC Supreme Court Commission on CLE Course No. 200260

Upping Your Evidence IQ

The Honorable Penny J. White The Honorable Roger M. Young, Sr.

2020 SC BAR CONVENTION

Trial & Appellate Advocacy Section

Friday, January 24

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ON YOUR FEET ADVOCACY:

UPPING YOUR ADVOCACY IQ

Presenter: Penny J. White pwhite4@utk.edu

I. Introduction – the Absolutes

Every year, when a group of so-glad-to-no-longer-be-a-first-year students join me for Advocacy Evidence, I begin the class with what I refer to as “two absolutes.” I tell them unequivocally that: One reason that I make this proclamation is to anchor students to a purpose as they begin to tackle an overwhelming amount of information at a grueling pace. But another reason is that based on my experience in the profession, performing various tasks of lawyering, judgment, researching, writing, and teaching, I know without a doubt that the absolutes are, indeed,

absolute. Lawyers who know the rules of evidence, who engage in evidentiary planning in advance of investigation, pleading, discovery, mediation, and trial will fare better than those who approach the evidence issues in their cases as haphazard or insignificant.1

The third absolute that I share on the second day of class is similarly unconditional and is based on Rule 103 of the Rules of Evidence, as well as several universally-held principles. Rule 103 provides that a party will not be entitled to relief on appeal based on a trial court’s error in admitting or excluding evidence unless a lawyer follows precise preservation guidelines and the ruling affected a “substantial right of the party.”2 This rule, coupled with the standard of review for evidentiary issues– abuse of discretion– and the presumption of correctness that attaches to trial court factual findings that underlie the evidence ruling, and exacerbated by the appellate

1 We are all aware that most cases are settled, either through negotiation or mediation, than are tried, but knowledge of the rules of evidence is as important in informing a lawyer’s negotiation posture as it is in informing a lawyer’s trial proof. 2 Rule 103(a) of the South Carolina Rules of Evidence provides, for example, Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or (2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence and the specific evidentiary basis supporting admission were made known to the court by offer or were apparent from the context.

Lawyers who know the rules of evidence win cases they would otherwise lose. ABSOLUTE # 1 Lawyer who do not know the rules of evidence lose cases they could win. ABSOLUTE # 2

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harmless error appellate harmless error standard all support the undeniable certainty of Absolute # 3. To put these four rules and principles into context, I emphasize: • Trial judges may wrongly admit evidence and be

affirmed. • Trial judges may wrongly exclude evidence and be

affirmed. • Appellate judges must affirm a trial judge’s evidence ruling even when the ruling is wrong, in

most instances. • Appellate judges must affirm a trial judge’s evidence ruling even when the appellate court

disagrees with the trial court’s evidence ruling, in most instances. • Lawyer’s evidence issues will be waived unless lawyers follow precisely the preservation

requirements of Rule 103. • Lawyers often waive evidentiary error, acquiesce in evidentiary error, or lead the court to

evidentiary error, all unintentionally and all with the same result: the issue will not merit review on appeal unless the appellate court feels magnanimous or finds plain error.

The fourth absolute is, in fact, a framework for analyzing all evidence issues. To analyze any evidence issue, ask yourself: FWP? For what purpose am I offering the evidence? For what purpose is my opponent offering the evidence? The framework is an excellent starting point for judges, who should always rule based on counsel’s not the judge’s answer to the question. For example, if counsel offers evidence that is objected to, and the purpose of the evidence is unclear, the judge should ask the proponent simply, “For what purpose is the evidence offered, counselor?” If counsel answers, “to impeach, your Honor,” the judge’s ruling will be controlled by Rules 607-613; if the exact same evidence is offered to establish motive or opportunity, then the analysis and ruling will be based upon Rules 403-405. Thus, once the FWP question is answered, the evidence analysis generally becomes easier. The FWP analysis is critical for lawyers as well. The proponents of evidence should always be ready to answer the FWP question based on their actual need for and use of the evidence. For example, if a witness’ statement is objected to as hearsay, and counsel responds that the evidence is not offered for the truth of the matter (i.e., “the purpose of the evidence is not for its truth but for . . . . ”) then counsel’s use of the evidence will be limited to that purpose. Counsel should be prohibited from arguing the statement’s truth or from relying on the content of the statement to contribute to any of its proof obligations. The FWP analysis is a bit more cumbersome for counsel who opposes the introduction of the evidence. Opposing counsel’s objection must take into account the purpose for which the evidence is offered. If that purpose is clear, opposing counsel who knows the rules of evidence will have no problem raising the appropriate objections. But when it is unclear what the

Lawyer must fight and win evidence battles before trial or at

trial because evidence issues rarely will justify relief on

appeal.

ABSOLUTE # 3

Ask or urge the judge to ask the FWP question:

Counselor,

For What Purpose are you offering the evidence?

ABSOLUTE # 4

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proponent’s purpose in introducing the evidence is, ideally opposing counsel will raise the issue in a way that nudges the trial judge to ask the FWP question. For example, opposing counsel might say, “Objection, your Honor, it is unclear the purpose for which the evidence is offered. If counsel is offering it to impeach, then . . . .” Notably, these matters are more easily meted out in pretrial motions in limine and hearings on those motions, particularly when the evidence matters are critical.

The fifth absolute also speaks to an overall method of analyzing evidence issues. By its nature, it undermines the very idea of “absolutes” in evidence law and encourages lawyers to view evidence rules as a means toward facilitating or hampering proof. The fifth absolute encourages lawyers to think of the rules of evidence as tools. With these tools, lawyers can build their case or, using the same tools employed defensively, erect barriers to opposing counsel’s proof. To add to the ease in remembering it, I encourage a simply acronym, URAT!, to encourage lawyers to use the rules as tools. The rules anticipate their use as tools as is most effectively illustrated in the special rules of relevance that follow the general definition of relevance in Rule 401, the rule of exclusion of irrelevant evidence, Rule 402. The special rules of relevance, beginning with Rule 403, the “scales of justice” rule, that allows otherwise admissible evidence to be excluded in the trial judge’s discretion based on a balancing of probativeness and certain dangers, and continuing through Rule 412, the rape shield rule, all presume that in some circumstances, for policy reasons, evidence that would otherwise meet a general definition of relevance will be excluded. To the extent counsel can articulate a different purpose (one other than the excluded purpose) for admission, or argue persuasively that the policy reason that drives the rule will not be met by excluding the evidence, the evidence may be admitted. In these rules, the prohibited purpose and the other purposes (“exceptions”) are generally expressed, but this process of “going under the rule” should be used by counsel in analyzing all critical evidentiary issues. In this way, counsel will be using the rules as tools to accomplish the desired objective. A final evidence tip that helps sort out the various issues that arise with the introduction of electronic or technological evidence is the “4 A” Rule. The 4A Rule is the title for the acronym

“Always Ask Authentication or Admissibility?” The acronym separates into parts the process of laying the foundation for the admissibility of all tangible evidence, be it electronic or real. To simplify the process, the 4A Rule implores counsel to approach the process as a two-part inquiry. First, has the evidence been authenticated? The authentication foundation requires evidence “sufficient to support a finding” that the evidence is what the proponent claims. The second inquiry is whether the evidence is admissible and includes consideration of the whether the evidence is relevant, unprivileged, and not barred by the hearsay,

opinion, original writing, or other evidence rules. By dividing the inquiry in this way, counsel can focus attention to the appropriate evidence rules and simplify the process.

ABSOLUTE # 5

URAT! Use Rules As

Tools!

THE 4A RULE FOR TANGIBLE EVIDENCE:

Always ask: 1. Has the evidence been

authenticated? 2. Is the evidence

admissible?

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II. Course Objectives

The course objectives are to explore the integration of knowledge, strategy, and skill to yield a successful case outcome in the context of pretrial evidence planning, the introduction and objection to verbal and tangible evidence at trial, and the preservation of legal error related to evidence issues. Through the discussion of a hypothetical case, participants will be able to: 1. Think critically and strategically about evidence issues, including planning pretrial evidence motions and preparing to introduce and object to the introduction of verbal, tangible, and electronic evidence at trial; 2. Grasp the use of evidence rules as pliable tools that can be maneuvered to facilitate the introduction or exclusion of evidence; 3. Observe demonstrations of techniques for introducing evidence, making and meeting objections, and preserving evidentiary issues; 4. Discern how judges evaluate evidence issues; and 5. Evaluate personal practices and strategies related to evidence issues with those demonstrated by exceptional South Carolina lawyers and with rulings made by South Carolina’s outstanding judges.

III. Case Scenario

A. Background

Sherron Jones began searching for a condo in Charleston, South Carolina, in the spring of 2015. She was looking for a modern condo in an upscale neighborhood, close to work, with property amenities. After searching in person and on-line for a few weeks, Sherron saw a pop-up ad from a condominium development known as Fairhaven. The ad promoted Fairhaven as a “community developed for young professionals” to have a “tranquil, safe, and convenient home close to all that is happening in Charleston.” Sherron was intrigued by the ad, which included lovely photographs of beautiful buildings, spacious residences, and well-maintained grounds. Sherron drove by the development and spoke to a few of the residents that she met while walking around. Sherron also asked co-workers and others and received positive recommendations about Fairhaven from members of her church, which was located within two miles of the development. Sherron began talking with Harlan Haynes, one of several sales agents at Fairhaven. Sherron learned that Fairhaven consisted of 135 one, two, three, and four-bedroom condominiums, located in five buildings on a 15-acre tract. The development included a swimming pool, basketball court, tennis courts, and a large patio area with tables, gas grills, and a fire pit. Sherron learned that, in addition to having condominium units for sale, the agents also managed leasing for a few units owned by individuals who did not live at Fairhaven. Because Sherron couldn’t afford to purchase a condo, she asked Harlan to show her units that were available for lease. Ultimately, after several showings, email discussions, and telephone negotiations, Sherron decided to lease

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Unit 107, a two-bedroom, first-floor unit, in Building 3 of the complex, owned and leased by the property management company. Before signing the lease, Sherron spoke several times with Harlan, viewed the Fairhaven webpage, was given a copy of a brochure entitled “Live the Tranquil Life at Fairhaven,” and received copies of the Fairhaven Gazette, a monthly newsletter produced by the complex for its residents. Sherron also asked Harlan questions about parking, common areas, security, and lighting. These matters were of particular importance to Sherron because she was a single woman who worked late hours. Harlan provided Sherron with copies of the complex’s residence guide and a map that showed the designated parking lot for Building 3. The parking lot, designated as Lot B, was open and within 100 feet of the main Building 3 entrance but was also located directly across the street from a large public park. Sherron looked at the designated parking lot during the day and at night and determined that it was amply lit and in close proximity to the main entrance of Building 3. Sherron also asked Harlan whether the complex had a security plan. Harlan showed Sherron particular parts of the complex brochure, directed her to the complex webpage, provided her with a 24-hour security pager number, and showed her the location of several emergency call stations located throughout the complex. The complex’s webpage and brochure noted that “Our residents’ comfort and safety are our first priority. Each building has a designated, well-lit, convenient parking lot. Our buildings and parking lots are equipped with a video surveillance system, visual video cameras, and direct-response emergency call stations. In addition, we have trained security officers, many of whom reside on the premises, who regularly patrol Fairhaven’s parking lots and common areas.” Approximately three years into her residency at Fairhaven, on February 2, 2018, Sherron returned home from work one morning at a little after 2:00 a.m. Sherron parked in the parking lot designated for Building 3. As she got out of her car, and removed some items from her trunk, Sherron was approached by two men, carrying weapons. After attempting to rob her, and being dissatisfied with the proceeds of the robbery, which included only a few dollars found in Sherron’s purse, the gunmen abducted Sherron, forced her into the trunk of her car, and drove her to a rural area, several miles away before abandoning the car with Sherron in the trunk. Sherron ultimately was freed from the trunk at dawn when a local resident who saw the abandoned car stopped to investigate. Sherron suffered severe permanent physical and emotional injuries as a result of the violent attack. After engaging counsel and an investigator, Sherron learned through discovery that the video surveillance camera in Lot B was inoperable on February 2, 2018, although it was operating properly the three days before and the weekend after. She also learned that the complex had not employed any security officers to patrol the complex since 2015, although they had continued to publicize the security program and the 24-hour security pager number. Sherron’s investigator learned that Fairhaven had not renewed its contract with the company that provided the emergency call stations service when it expired at the end of the year in 2016. The investigator also interviewed several residents who indicated that the lighting in Lot B was often inoperable, although none of the residents are able to say with certainty what the condition of the lighting was on February 2, 2018. Within a few weeks of the attack, in mid-March, the investigator photographed the condition of the trees and vegetation around Lot B and documented that five of the eight lights in the parking lot were either completely or partially unilluminated.

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B. Lawsuit

Sherron Jones has filed a civil complaint alleging negligence against Fairhaven’s owner, Condo Complex LLC (hereafter CC, LLC), its property manager, Condo Complex Management, LLC (hereafter CCM, LLC), and against Harlan Haynes, the leasing agent with whom Sherron communicated about the condominium and negotiated her lease. The complaint alleges that defendants voluntarily undertook a duty to provide a safe and secure placed for its residents to live and communicated its intent to the Fairhaven residents; that CC LLC and CCM LLC breached their duty by (1) misrepresenting the facts relevant to the security provided, including representing that security officers regularly patrolled the premises when no security officer program was actually in effect; (2) by neglecting to maintain the premises in a manner consistent with providing a secure community, including neglecting maintenance of the landscaping, lighting, surveillance system, and emergency call stations; and (3) by failing to assure that the security plan outlined in the complex’s literature was in effect, efficacious, and operational. Defendants deny all allegations of the complaint. IV. Exercises Team 1: The Awesome Advocates Tackle Relevance and Related Issues Following discovery, both parties have concerns about the relevance and admissibility of evidence that either advances or detracts from their legal and factual theories of the case. We join Team 1 as they argue for the admission or exclusion of the following evidence. A. Plaintiff’s Motions 1. Plaintiff’s Motion in Limine to Exclude Evidence under Rules 402, 403, 404 of the South Carolina Rules of Evidence Defendant has given notice of its intent to introduce video footage from Parking Lot B. The time and date stamp on the footage shows that the recordings, both less than a minute in length, were recorded on January 28 at 3:15 a.m.; January 31 at 4:25 a.m.; and February 1 at 2:45 a.m. All three recordings are similar. Although the images on the video are blurred and dark, they clearly show Plaintiff arriving at Lot B while accompanied by a second car, a Ford SUV. The SUV does not have a Fairhaven parking decal. The two cars are parked side by side. On each night, when Plaintiff gets out of her car, she appears to stumble toward the sidewalk. On each night, two individuals get out of the SUV, greet Plaintiff, and walk with her into Building 3. The two individuals dressed in hooded sweatshirts are larger that Plaintiff and appear to be male; both also appear in the video to be unsteady on their feet. The audio portion of the recording is indecipherable but clearly indicates that Plaintiff and the other two individuals were talking and laughing. Defendant’s theory of admissibility is that the video footage is relevant because it indicates a pattern of conduct by Plaintiff, perhaps even her habitual evening ritual that may have contributed to the events on the following night. Plaintiff moves to exclude the evidence based on three grounds: (1) the evidence is not relevant; (2) if relevant, its probative value is substantially

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outweighed by the danger of unfair prejudice and of misleading the jury due to the poor quality of the videos and the timing of the videos; and (3) the evidence is improper character evidence, which is being offered in an attempt to portray Plaintiff in a negative light and to create a propensity inference. 2. Plaintiff’s Motion in Limine to Exclude Evidence of Plaintiff’s Prior Conviction In 2012, Plaintiff was convicted of possession of cocaine. Pursuant to Rule 609 and Rule 403 of the South Carolina Rules of Evidence, Plaintiff moves to exclude evidence of her prior convictions. 3. Plaintiff’s Motion in Limine to Exclude the Testimony of Joan Walker Defendant’s witness list includes the owners of Unit 105, the condominium that is located directly adjacent to Plaintiff’s condominium. During deposition, Joan Walker testified that she and her husband had complained on 6-8 occasions about the noise level in Unit 107. The complaints have been via email to the property manager, in person, and by phone. Specifically, Joan Walker will testify that on February 3, at 7:45 a.m., she emailed the property manager complaining about the noise in Unit 107 on February 2. The email said, “Again, after midnight and early this morning, we were unable to get any rest due to the loud noises and activity in Unit 107. We ask that this matter be put on the agenda for the next HOA meeting, to be held on the 10th of the month.” Defendant’s exhibit list indicates an intention to introduce this email. Plaintiff moves to exclude this testimony and the email on the bases that it is irrelevant, is substantially more prejudicial than probative, is inappropriate character evidence, and is hearsay. B. Defendants’ Motions 1. Defendants’ Motion to Exclude Alleged Prior Similar Act Evidence a. Plaintiff’s discovery has produced information about other incidents of property damages and personal injury that have occurred at Fairhaven from January 1, 2016, until February 3, 2018. As a result of other discovery motions, including Requests to Admit, there is no issue as to the authenticity of the underlying documents. Based on the information received from Defendants, as well as police reports from the local precinct, Plaintiff plans to introduce evidence of these other incidents to prove Defendants’ negligence. It is Plaintiff’s contention that the frequency of other acts and the similarities go to the Defendants’ breach of duty. Defendant has moved to exclude all of the alleged prior similar act evidence based on both Rule 402 and Rule 403. b. Plaintiff hired a forensic accountant to review the records, create a summary of incidents, and testify as a summary witness under the provisions of Rule 1006 of the South Carolina Rules of Evidence. The content of the summary is drawn completely from Fairhaven’s records and the police reports obtained during discovery. The summary documents the date, time, source, and nature of each complaint that was registered with Fairhaven or the police from January

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1, 2016 through February 3, 2018. The forensic accountant will testify that, in order to determine the nature of the complaint and categorize the complaint on the summary, she read each record. She then divided the complaints into five categories: complaints of individuals loitering on the premises; complaints of property damage or vandalism; complaints of theft; complaints of assault; and other. Complaints Complaints Nature____________________________________ (to Fairhaven (to Police) Loitering Vandalism Theft Assault Other Prop. Mgmt.) 2. Defendants’ Motion to Exclude Emails During discovery, Plaintiff also received copies of all emails received by Defendants’ property manager from January 1, 2017, until February 3, 2018, from Fairhaven residents that related to the upkeep and maintenance of common areas of the Fairhaven complex. These emails included complaints about overgrown landscaping, trash accumulation in parking lots, and inoperable lights in parking lots. Plaintiff asserts that the emails are relevant to establish that Defendants were aware of neglect of property maintenance that had led to unsafe and hazardous premises as a result of overgrown shrubbery and trees that obscured walkways, stairways, and pathways, and pole lights that were frequently not illuminated. Although the complaints relate to the entire complex, and not just the area near Building 3 and Lot B, Plaintiffs contend that the overall deteriorating condition of the property should have alerted Defendants to the need to take action to assure safety for the residents. Defendant has moved to exclude all of the alleged prior similar act evidence based on both Rule 402 and Rule 403. Teams 2 and 3: The Tenacious Trial Technicians Tackle Technological Evidence During the pretrial conference, counsel are required to file an Exhibit List and exchange exhibits. Both Plaintiff and Defendants’ lists include technological and electronic evidence that counsel hope to introduce. In order to facilitate the trial, the trial judge convenes an additional pretrial conference for the sole purpose of discussing any authenticity or admissibility issues that may be raised concerning the technological and electronic evidence. A. Plaintiffs’ Digital, Electronic, and Technological Evidence In order to establish the representations that Plaintiff claims Defendants made about Fairhaven’s commitment to safety for its residence, Plaintiff relies upon a number of electronic documents including screen shots from webpages, pop-up ads, email exchanges between Plaintiff and Harlan Haynes, and Fairhaven’s on-line newsletter. Plaintiff also relies upon an animation, created electronically to demonstrate one bases for finding Defendants liable. Team 2 represent Plaintiff and will argue issues related to authentication and admissibility of these exhibits, while Team 3 will challenge authentication and admissibility on all appropriate grounds.

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1. Plaintiff offers as Collective Exhibit 1, three screenshots of Fairhaven’s webpage; the first screenshot includes the condominium logo, “Live the Tranquil Life at Fairhaven.” The second and third screenshots from the webpage include the following statements: a. “At Fairhaven, your health, happiness, and well-being is our primary concern.” b. “Fairhaven – a planned community for young professionals who want a calm, peaceful, tranquil residence, that feels far away but that is just close enough to all that is happening in Charleston” 2. Plaintiff offers as Exhibit 2 a copy of Fairhaven’s brochure, which she downloaded from the Fairhaven webpage; it too includes information touting the Fairhaven community as a tranquil, safe, and secure place to live. 3. Plaintiff offers as Collective Exhibit 3 the monthly newsletters from Fairhaven from 2015-present, all downloaded from the Fairhaven webpage. Each newsletter included a section entitled “Help Keep Fairhaven Safe.” The section listed “Tips for Safety” that included: (1) Know your Fairhaven security officers; (2) Know the location of the Emergency Call Stations at Fairhaven; and (3) Know the 24-hour security pager number. The section advised readers of the Fairhaven security officer program “through which Fairhaven grounds are patrolled by trained police officers working off-duty as Fairhaven security officers, displayed a property map with locations of the emergency call stations circled and highlighted, and included an eye-catching caricature of a honey bees swarming around a hive named “Fairhaven” while buzzing “BEE-SAFE (223-7233), Fairhaven’s 24-hour securing pager number.” 4. Plaintiff offers as Collective Exhibit 4 the email exchanges between Plaintiff and Harlan Haynes that preceded and culminated in Plaintiff leasing Unit 107. These email exchanges consist of six emails, three inquiries from Plaintiff and three responses from Harlan Haynes. 5. Plaintiff offers as Exhibit 5 a pop-up ad, secured by Plaintiff’s forensic expert, that appears when 6. Plaintiff offers as Exhibit 6 an animation showing Plaintiff’s arrival in the parking lot and the likely hiding place and route of her assailants on February 2, 2018. B. Defendants’ Objections to Plaintiff’s Exhibits Defendants will raise various authenticity and admissibility objections to Plaintiff’s digital, electronic, and technological exhibits. Team 3: The Level-Headed Litigators Tackles Opinion Testimony Both parties anticipate using opinion testimony to establish elements of their case or defense. Likewise, both parties have filed motions challenging aspects of the opinion testimony.

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A. Plaintiff’s Motion in Limine Regarding Defense Expert William Sanders Defendants have given notice of their intent to call William Sanders as an expert for purposes of talking about various aspects of the layout, design, and security of the Fairhaven complex. Sanders has an educational background and professional experience in architecture, with an emphasis in environmental design, architecture planning, and architectural security. He also has experience as a landscape architect and has worked extensively with local governments and insurance companies providing consultation, design, and assessment to enhance and assure security in public areas. In a Motion in Limine to Exclude Testimony of Defense Expert, Plaintiff challenges the expert’s qualifications, the subject matter of his testimony, and the underlying bases of his opinion. Additionally, in the event the testimony is allowed, Plaintiff seeks to introduce evidence of bias based on the defense expert’s professional connection to the liability insurance company that insures Fairhaven. B. Defendants’ Motion in Limine Regarding Witness Fife Plaintiff has given notice of an intent to call a retired police officer to testify about (1) the efficacy of Fairhaven’s security plan; (2) the conditions that contributed to the criminal conduct that Plaintiff encountered; and (3) the crime rate and nature of crime in the general area of the complex. In Defendants’ Motion in Limine to Exclude Opinion Testimony from Retired Police Officer, Defendant challenges the officer’s qualifications to testify as an expert under Rule 702 of the South Carolina Rules of Evidence and argues that the officer’s testimony is also inadmissible as lay opinion under Rule 701 of the South Carolina Rules of Evidence. V. Some Applicable Rules

RULE 401 DEFINITION OF "RELEVANT EVIDENCE"

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

RULE 403 EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE,

CONFUSION, OR WASTE OF TIME

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

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RULE 404 CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTION;

OTHER CRIMES

(a) Character Evidence Generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

. . .

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.

RULE 405 METHODS OF PROVING CHARACTER

(a) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific Instances of Conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

RULE 406 HABIT; ROUTINE PRACTICE

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

RULE 608 EVIDENCE OF CHARACTER, CONDUCT AND BIAS OF WITNESS

(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and

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(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters which relate only to credibility.

(c) Evidence of Bias. Bias, prejudice or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced.

RULE 609 IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME

(a) General Rule. For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

. . .

(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

RULE 701 OPINION TESTIMONY BY LAY WITNESSES

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If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which (a) are rationally based on the perception of the witness, (b) are helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) do not require special knowledge, skill, experience or training.

RULE 702 TESTIMONY BY EXPERTS

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

RULE 703 BASES OF OPINION TESTIMONY BY EXPERTS

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

RULE 901 REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION

(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: (1) Testimony of Witness with Knowledge. Testimony that a matter is what it is claimed to be. (2) Nonexpert Opinion on Handwriting. Non-expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation. (3) Comparison by Trier or Expert Witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. (4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. (5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. . . .

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(7) Public Records or Reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. . . . (9) Process or System. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. (10) Methods Provided by Statute or Rule. Any method of authentication or identification provided by statute or by other rules promulgated by the Supreme Court.

RULE 902 SELF-AUTHENTICATION

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: . . . (4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with subsection (1), (2), or (3) of this rule or complying with any statute or rule promulgated by the Supreme Court. (5) Official Publications. Books, pamphlets, or other publications purporting to be issued by public authority. (6) Newspapers and Periodicals. Printed materials purporting to be newspapers or periodicals. (7) Trade Inscriptions and the Like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin. (8) Acknowledged Documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments. (9) Commercial Paper and Related Documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law. . . .

RULE 1006 SUMMARIES

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation, provided the underlying data are admissible into evidence. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

The Art of the Story

R. Ashby Pate

2020 SC BAR CONVENTION

Trial & Appellate Advocacy Section

Friday, January 24

Be The Light: The Story Behind the Story

R. Ashby Pate

Lightfoot, Franklin & White, LLC

The Clark Building

400 20th Street North

Birmingham, AL 35203

(205) 581-0775

apate@lightfootlaw.com

Biography

R. Ashby Pate is an attorney at Lightfoot, Franklin & White, LLC in the firm’s Birmingham,

Alabama office. He maintains a general commercial defense practice, with a focus on international

disputes, appellate work, and products liability. He routinely takes on some of the firms most

important and controversial matters, including co-prosecuting former Alabama Supreme Court

Chief Justice, Roy Moore, in a widely-publicized judicial ethics trial. Pate also formerly served as

Associate Justice of the Supreme Court of Palau, where he helped design the island nation’s first-

ever jury-trial system and was the youngest justice appointed in Palau’s history.

In addition to his law practice, Pate is a sought-after public speaker. His speech, Be The Light,

highlights the importance of human connection in the practice of law. Since first delivering it to

the American College of Trial Lawyers’ Annual Meeting in 2016, he has received invitations to

speak across the country, including giving the keynote address, alongside Justice Anthony

Kennedy of the United States Supreme Court, at the Ninth Circuit Court of Appeals’ Law Clerk

Orientation in San Francisco, as well as presentations to the American College of Trial Lawyers

in Savannah, Maui, and Wilmington.

Before law school, Ashby released two albums of original music and toured in the Southeastern

United States in several different bands. He is still an avid musician and is known to pick up his

guitar and incorporate song into his speaking engagements.

The Story Behind the Story

Trial lawyers are, at their heart, storytellers. Unlike writers, however, most of us do not get to

choose which stories we tell. We do not have the luxury of assigning characteristics to our

witnesses or molding a judge’s ideological background or framing the narrative for a dramatic

climax. We do not write our story arcs or pencil in our happy endings. In this respect, the trial

lawyer’s job is different and perhaps more difficult than that of the author, the screenwriter, the

musician, and the poet. It is our job to reframe the story. It is our job to make the reader, the jury,

sympathize with the antagonist. To thrust logic and reason and law and Latin to the forefront of

the jury’s mind and to convince them that the way they typically reach conclusions, with their

hearts and minds in tandem, is the wrong way to think. And each of us have, at some point or

another, failed in that respect.

But we can do better.

Researchers across all disciplines agree on two things: (1) human beings crave connection; and (2)

the art of story-telling is the most essential way to foster human connection. This is because we,

as humans, yearn for a shared history, a shared purpose, and a shared narrative. We want to share

our stories and hear others in return.

Yet when it matters most, when our clients’ welfare is on the line, when we seek to define the

outcome of our case by putting it in the jury’s hands, we all too often ignore that human connection.

We retreat to formulas: the pallid introduction, the essential elements of the legal claim, and the

PowerPoint templates that we’ve all seen used before. We rely on the way its always been, and we

ignore the way it ought to be. What lawyers don’t understand is that not every lawsuit is a problem

that must be solved. In most case, it’s a paradox to manage. That’s where stories come in and give

us the metaphorical vocabulary to do so.

By some estimates, just over a quarter of the American population have ever served on a jury. For

the rest of us, our experience comes from what we’ve seen on TV—“Law and Order” and “A Few

Good Men” and “My Cousin Vinnie.” We’ve come to expect the dramatic revelations and

bombastic arguments—the chest thumping and “role of a lifetime” performances. And while I’m

not suggesting that we all start taking acting classes or trying our hands at improv, I am suggesting

that we remember what the jury expects to see—a performance. The jury expects that they will be

told a story, and that that story will have characters and twists and turns and that it will eventually

have an ending. Only in our profession, it’s the jury that writes the ending. And it’s our job to tell

them how to do it.

Storytelling. It’s at the heart of what we do as lawyers. But how can we do it better?

Content

Hi, My Name Is…

The first few moments of any presentation are critical. This is where the audience judges you the

most. Whether you’re credible. Whether you’re interesting or unique or inspiring. This is the time

for you to connect with your audience and not only tell them why they should care about what you

have to say, but to show them why they should care. All too often we waste these few precious

seconds with a “Hi, my name is so and so, and I’m going to talk about so and so and you should

care because A, B, and C.” And in some instances, and for some people, this formula is acceptable.

But in no instance, and for no person, is it ideal.

For lawyers especially, the first few moments of a presentation is the only chance we’ll get to

capture our audience’s attention. It is one of only a handful of times in which we are directly

engaged with our audience and where we are not bogged down by procedure, pageantry, and

checking off boxes. It is an opportunity for us to use our human strengths and talents to draw a

connection between what we believe and what we hope to convince our audience to believe. This

is the time for the unexpected, because at this point, your audience has no expectations. Of course,

not many of us would feel comfortable crooning to the jury. Nor would most courts allow it. But

nor do most courts have a rule that says you must begin by pallidly introducing yourself and your

colleagues before methodically announcing your theory of the case to the jury. It’s ineffective, it’s

outdated, and it’s almost always unnecessary.

In today’s presentation, I opened up by playing a song. I did it to get your attention. And because

it’s not what anyone expected, it took you by surprise. It worked. So, you listened, perhaps a little

nervously, until I put my guitar down and started speaking. And for the next eight minutes, I told

you about an old blues musician named Huddie Ledbetter and his mishaps as a young musician in

Sugar Land, TX. And I told you about a conference in Palau and how I had the epiphany that what

makes me passionate about practicing law is the human connections I hope to draw from the

profession. And then, finally, about a third of the way into my speech, you knew what I was trying

to tell you without my ever having to do so. That is storytelling. That’s what we’re supposed to

do.

Theme

The theme to your story is more than a bullet on a slide. It should appear early on and reappear

often as you remind your audience of why they should care about what you have to say. The theme

is the glue that binds everything else together, and without a theme, a presentation is nothing more

than a recitation of facts. In my presentation, I stressed the theme of bringing human connections

to your practice. I did this by drawing parallels in your mind between Huddie Ledbetter’s story

and my own. I did it by holding up my hand and showing you the other side of it. I did it by

repeatedly using my own experience with human connections to illustrate how powerful they are

in everyone’s lives.

Arc

The beginning and end of any good story share a common bond. In my presentation, it was the

power of the message behind “Midnight Special.” You heard it when I started, and you heard it

when I finished. In Forrest Gump, it was a white feather being tossed around aimlessly in the sky,

at the beginning and the end, just as Tom Hanks was thrust around into random events throughout

the course of the film. The best themes are those that catch the audience by surprise, such that they

forget that they’re hearing a CLE as opposed to what I would submit was an angelic and perfectly

executed rendition of an old blues number. The theme does not have to be explicit at first, but it

should be clear by the end of your presentation how the pieces fit together. This final “ahha”

moment should answer for your audience why you started a speech about the legal profession with

a song and story about an old blues legend.

Presentation

PowerPoint is one of the most effective tools a presenter has, but it also can be among the most

distracting. To use PowerPoint effectively, remember the following:

• A slide should appear only for as long as it is relevant. You want the audience to be

listening to you, which means you want the audience to be looking at you, which means

you don’t want the audience to be looking at a slide while you’re talking about something

unrelated to it. Intersperse blackout slides throughout your presentation to naturally draw

the audience back to you when you don’t want them looking elsewhere.

• A black background is your friend. Not only is it easier on the eyes than a white

background, but it allows you to seamlessly transition to blackout slides without distracting

the audience.

• Control the show and know it well. In today’s day and age, there is simply no excuse for

having someone else control your slides. Not only does it distract your audience when you

break up your conversation to instruct an assistant to switch slides, but it puts a series of

roadblocks in front of what could otherwise be a seamless presentation. By using a remote

clicker and blackout slides throughout the presentation, you can use PowerPoint to

illuminate your message without distracting from it.

• Fades are your friend. Our eyes are designed to detect movement. When a PowerPoint

presentation instantly changes from one slide to another, you run the risk of your audience

either not noticing the change or becoming distracted by it. A subtle fade between slides

creates just enough movement to notify the audience that something is happening and either

diverts their attention back to you or the subsequent slide.

• Bullets, not bulletins. The text on a slide should correspond to the topic about which you

are speaking—it should not contain a summary of what you are saying. The human mind

cannot process both the written and spoken word at the same time, and when you present

a block of text while you’re speaking about it, you’re asking the audience to do both. Use

a bullet to tell that what you’re going to tell them, and use your voice to tell them about it.

Conclusion

Lawyers and judges have the unique power to create meaningful human connection in their work—

if only they’d rethink how they approach they tell their stories.

In this presentation, Justice Pate illustrates the power of human connection through his unique

“story,” which includes his own experience in the criminal justice system as a young man, all the

way to his appointment to serve as an Associate Justice of the Supreme Court of Palau, a remote—

and disconnected—island nation in the western North Pacific. Weaving stories of his time in Palau,

where he helped bring an end the nation’s practice of solitary confinement, he shares how the

power of human connection changed his own life and illustrates what can happen when lawyers

and judges realize that the law’s highest calling is not to disconnect, but to reconcile, not to lock

people up, but to set them free.