strategy || traps

TrapsAuthor(s): James W. McElhaneySource: Litigation, Vol. 10, No. 2, STRATEGY (Winter 1984), pp. 53-56, 61Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758865 .

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THalNotebook

Traps

It was years ago, and Hanley was not in Chicago, his old stomping grounds.

He was in a state court in Salem, Massachusetts, representing the defense in a products liability case. He had the

good sense to have local counsel at his

side, both to introduce him to the court and to help him negotiate his way through the pitfalls of local practice.

At the end of the plaintiffs case he stood up and made what he thought was a pro forma motion: "Your honor, the defense moves to dismiss the plaintiffs case?

Imagine his shock then, when the local counsel said to Hanley as he sat

down, "My God, Hanley, you certainly have nerves of iron?

"What do you mean?" "You made that motion like it was

just some perfunctory matter? "It was. I simply moved to dismiss the

plaintiffs case? "Don't you know" asked local

counsel, "the effect of that motion? You have just waived your right to put on

your entire defense. After that motion, either the judge rules in your favor, or

you are stuck arguing this case with

by James W. MeElhaney Executive Editor

none of your evidence. The only issue on appeal could be whether it was prop? er to deny your motion?

The puckish gods of litigation smiled, and the judge granted Hanley's motion ?but the lesson stuck. There are traps out there, and the way to avoid

falling in is to know about them.

Right at the start ? there is the academic's favorite problem ?the

proper definition. What is meant by a

trap? An obscure technicality? A rule that is necessarily unfair? Some pro? cedure that is out-of-step with the

general American common law? The

difficulty with any of those is that what is obscure to one lawyer is common

knowledge to another, and what seems unfair in one setting may be highly ap? propriate somewhere else. There is

nothing wrong with the rule that near?

ly caught Hanley ? as long as you know

what it is. So we will not worry about an exact

definition of what is a trap, a snare, or

a pitfall. For our purposes, any rule of evidence or procedure that has unex?

pected consequences will qualify ? and

there are plenty of them. Here are the favorite traps from a number of dif? ferent trial lawyers across the country. They share a common quality: if you do not watch out, they can catch you.

Start with Fed. R. Civ. P. 50. It follows the usual rule about directed verdicts: moving for a directed verdict does not waive the right to put on evidence if the motion is denied.

In fact, a motion for a directed ver? dict is required \i you later want to make a motion for a judgment notwithstand?

ing the verdict. In other words, if the

jury returns a verdict against you, a mo? tion for judgment notwithstanding the verdict is only proper if you first moved for a directed verdict. And not just any motion for a directed verdict will do. It must come "at the close of all the evidence!' Rule 50(b). Do you have it? No motion for a directed verdict at the

right time, no motion for a judgment notwithstanding the verdict later. It is a simple doctrine of waiver, right?

Not so fast, you say. What is the rela

53



tionship between these two motions?

Why should the failure to make one waive the other?

The reason is conceptual and historical. If you make a motion for a directed verdict, you are saying, "Judge, this case is so clear that you should not even let it go to the jury? And if you make a motion for a judgment not?

withstanding the verdict, you are say? ing, "Judge, this case is so clear that you should not have let it go to the jury? Because the ideas behind the two are

closely related, the law concluded that a waiver of the first motion was a waiver of the second.

But wait a minute. What about how

things really work? Everyone knows that judges do not like to grant directed verdicts. They are likely to wait and see what the jury will do, so they will not have to take responsibility for a deci? sion that the jury might make for them.

Typically, judges reserve ruling on mo? tions for directed verdicts ? and then

give serious thought to the problem for the first time afterward, when they con? sider the motion for a judgment not?

withstanding the verdict. The result is that most of the time

there is no real meaning to the motion for a directed verdict. The words are

spoken, but no one expects anyone to do anything about them. But come time for a judgment notwithstanding the ver?

dict, and then the motion for directed verdict takes on a magic air. Like eye of newt and wing of bat, the words had to have been added at just the right time to make the potion work.

Is there any practical justification for the rule other than an over-active doc? trine of waiver?

Just maybe. If moving for a directed verdict and stating the grounds for it would have alerted the opponent that some part of his proof was inadvertently

missing ? and if the judge would have

permitted the opponent to reopen the case and offer that proof?then there is the possibility of "detrimental reliance" by your opponent in your fail?

ing to make a motion for a directed verdict.

But that is pretty theoretical. It assumes that the motion is treated

seriously when it is made, which it seldom is. Instead, it is treated seriously later, when the other motion is made. So think of it this way: it is a trap, and if you want to preserve your motion for a judgment notwithstanding the verdict,

do not forget to move for a directed ver? dict at the close of all the evidence.

In every state the statutes of limita? tions can get tricky. That is why careful

lawyers make it a habit to check on limitations almost before they do

anything else. Technical enough already, statutes of limitations get even

tougher when they are mixed with the notice requirements found in many states. Notice requirements are like ex? tra statutes of limitations in some situa? tions. For example, you may have a

year to bring an action for negligence. But if the action is against a municipali? ty or a utility

? and if a statute requires

written notice to the potential defendant within 90 days of the injury, the case

may be over before it comes in your office ? or even worse, the day after.

Lesson? Make a chart of the statutes of limitations that includes any special notice requirements.

Even with a chart, time limitations can be complex. Consider this case from Florida. It is an action for personal in?

juries. The jury awarded the plaintiff a sizable verdict. The defendant moved for a new trial, and to everyone's sur?

prise, the trial judge granted the motion. Rather than simply appeal the order

granting a new trial (which he could have done), the plaintiff thought he could talk the trial judge into reinstating the verdict. So the plaintiff petitioned the court for a rehearing on the order to grant a new trial. The idea was that the court might reconsider its ruling and let the verdict stand.

There is a feeling of deference in what the plaintiff did ? give the judge the op

portunity to correct his own mistake before running to the appellate court.

In due course, the court denied the

rehearing. And the price of deference seemed too high when it developed that the time for appealing the order

granting the new trial had run while the

judge was considering the motion for a rehearing. In other words, the right to appeal was lost by waiting for the trial court to correct its mistake. C/.

DePadro v. Moore, 215 So.2d 27 (Fla. Dist. Ct. App. 1968). Luckily for the

plaintiff in this case, he also won the sec? ond time it was tried.

Lesson? Read the rules literally, and do not assume that your motion will toll the time to file, respond, or appeal.

If everyone thinks that something is a rule, then it might as well be the law, even if it is not. But what about a rule that only some of the lawyers believe in?

Douglas Connah reports that in

Maryland, one local bugaboo that older

lawyers watch out for is a "rule" followed by a few of the judges. The "rule" says you are not entitled to a directed verdict at the end of the plain? tiffs case if you have introduced any documents during the cross examination of the plaintiffs witnesses. The idea is that introducing evidence for consideration by the trier of fact waives the directed verdict.

The results of this "rule" are

fascinating. The lawyers who follow it

actually go ahead and use their own documents during the cross examination of the plaintiffs witnesses, but they do not formally offer them in? to evidence until the start of their own case-in-chief. You can spot the believers in the "rule" by their first words for the defense: "Your honor, I offer into evidence defendant's exhibits already marked one through one hundred

twenty for identification? There are probably more snares in

evidence than in procedure. Sometimes

they are caused by "simplifications" in the law. Take learned treatises as an ex?

ample. Fed. R. Evid. 803(18) makes them an exception to the hearsay rule. No longer are learned treatises admissi? ble just to impeach, and no longer are cumbersome limiting instructions re?

quired. Furthermore, learned treatises can be authenticated by the testimony of the witness who is being examined with them, by some other expert, or even by judicial notice. To keep deliberations uncluttered, the books

54



and pamphlets are not admissible as ex? hibits but may be read into evidence.

The rule seems to invite a simplified procedure: just mark the text, lay the proper foundation, and have the witness read from the book. No need to make a formal offer, right? Wrong, says Maggapinto v.

Reichman, 481 F, Supp. 547, 550

(E.D.Pa. 1979). You must make a for? mal offer of the treatise even though it is not an exhibit. If the offer is not

made, then it does not become substan? tive evidence. What does that mean? It cannot be used for its truth.

The Federal Rules of Evidence also

simplified the law of prior inconsistent statements. It used to be that prior in? consistencies were admissible only to

impeach witnesses, not to prove the truth of the statement (a difficult distinction for both laymen and lawyers to follow). And it used to be that the rule in Queen Caroline's Case, 2 Br. & B. 284, 129 Eng. Rep. 976 (1820), was followed in nearly all states. That rule required confrontation with the prior statement before any outside proof of the prior statement was admitted in evidence. Both of those rules were

changed by the Federal Rules of Evidence.

A Maze Here is the "simple" result: There are

now two classes of prior inconsistent statements. The first is found in the definition of hearsay. Prior inconsistent statements are admissible for their truth if (1) the declarant testifies at the trial or hearing, (2) the declarant is subject to cross-examination about the state?

ment, (3) the statement is "inconsistent with his testimony," and (4) the state? ment "was given under oath subject to the penalty of perjury at a trial, hear? ing, or other proceeding, or in a deposi? tion? Fed. R. Evid. 801(d) (1) (A).

In effect, some prior inconsistent statements are admissible as exceptions to the hearsay rule. So where are the

traps? Snare number one: You will not find

prior inconsistencies listed as an excep? tion to the hearsay rule, or in the rules on witnesses and impeachment. Where will you find them? Right where they do not belong, in the definition of what is not hearsay.

Snare number two: If you read all the Federal Rules of Evidence, you might be tempted to believe that only prior in

consistent statements that qualify under Rule 801(d)(1)(A) are admissible. Why might you think so? Because nowhere else in the rules is there any definition of a prior inconsistent statement that is admissible for any purpose. But if you thought there were no other admissible prior inconsistent statements, you would be wrong. Rule 801 only defines the prior inconsistent statements that are admissible for their truth. Other prior inconsistent statements are still ad? missible but are not mentioned by the rules. Without saying so, the Federal Rules made two classes of prior incon? sistent statements ? some admissible for their truth and some admissible just to impeach.

Snare number three: Rule 613 says you need not confront a witness with the prior statement before cross-examining him about it. It is a simplification, remember? But what too many lawyers forget is that the rule does not abolish the requirement of confrontation ? it just delays it. It is no longer necessary to confront the witness with the prior statement just to ask questions about it. On the other hand, extrinsic evidence of the prior inconsistent statement ?

evidence outside of the examination of the witness ?such as the statement itself, or some other witness's testimony about it ? is not admissible unless "the witness is afforded an opportunity to

explain or deny" the statement. So is it a trap or not? It depends on

your point of view. On the one hand, the Federal Rules of Evidence have not

simplified this area very effectively. It is more like a maze than a straight line.

On the other hand it is not so hard, once you realize that there are two kinds of prior inconsistencies and that confron? tation is still required. Do not forget about confrontation, or Rule 613 will be a very real trap.

Some of the most dangerous pitfalls come from being guilty of full trial

preparation. Assume a simple situation. You have

a case involving a questioned document. One of your key witnesses, Joanna

Squires, is personally familiar with the

handwriting of the dead man said to have written the document. While Miss

Squires is not an expert, you think her

testimony will be impressive because of her impartiality. In fact, you plan to call her to the stand before your hand?

writing expert testifies. Now you are getting ready for trial.

Your natural tendency is to spend some time preparing Miss Squires, checking her ability to identify the signatures on some known and questioned exemplars. It is not a good plan.

If you read Fed. R. Evid. 901(b), you will see why: non-expert opinions about the genuineness of handwriting are on?

ly admissible if they are "based on

familiarity not acquired for purposes of the litigation." Your pretrial preparation of this witness will have to be careful, indeed. Otherwise you will prepare the

witness until the evidence is inadmissible.

It can get even more dangerous. Refresh a witness's recollection in

preparation for a deposition or trial with an otherwise privileged document, and the privilege may be lost. See Prucha v. M & N Modern Hydraulic Press Co., 76 F.R.D. 207 (W.D. Wise. 1977). Well, if woodshedding the witness

has pitfalls, at least it is safe to take a

deposition, correct? As Professor Edward J. Imwinkel

ried of Washington University Law School in St. Louis points out, maybe not. In some states merely taking the deposition of a witness who would otherwise be disqualified under the Dead Man's statute is a waiver of the

incompetency of the witness. Fulmer v.

Rider, 635 S.W.2d 875 (Tex. App. 1982). It is the sort of mistake that could alter an entire case ? admitting other? wise incompetent evidence and chang? ing the outcome. As Imwinkelried says, it could even amount to malpractice.

Be careful with blanket claims of work product privilege. If you claim a work product privilege to a document, you may make it inadmissible. How?

Easy. If you claim that the document was prepared for litigation, you have

just made it inadmissible as a business record under the rule of Palmer v.

Hoffman, 318 U.S. 109 (1943), which holds that business records that are

prepared with a view toward litigation are inadmissible. Even so, they might still qualify as past recollection re? corded. The trouble is that under Fed. R. Evid. 803(5), past recollection recorded may be read into evidence, but

may not be received as an exhibit unless offered by the opponent.

Some of the most interesting traps are

entirely local, and like all law they are

subject to quick change. In Texas, for example, it once was required to take

55



formal exception to the judge's ruling to preserve error in a criminal case, but not in civil cases. That inconsistency is gone, but Texas has made up for its loss. The Federal Rules of Evidence have been largely adopted by the Supreme Court of Texas for civil actions, but the old common law still applies to criminal cases. Only the legislature can change the criminal evidence rules, and it has not done that yet.

Pat Hazel of the University of Texas Law School reports that Texas has a

special rule for preserving error. It is necessary to have an adverse ruling from the judge in response to an evidence objection. According to

Hazel, you must keep escalating your demand until the judge turns you down:

"Objection, Your Honor!' "Sustained." (The error went away.) "Request a limiting instruction, Your

Honor."

"Granted? (It went away again.) "Move for a mistrial, Your Honor." "Denied'.' (Error was finally

preserved.) Arkansas has its own twist on this

progression. Suppose the prosecutor commits a serious error, such as com?

menting on the failure of your defen? dant to testify. You object and ask for a mistrial. Instead of granting the

mistrial, the judge simply tells the jury to disregard the comment. According to William R. Wilson of Little Rock, you must renew your request for a

mistrial, or it is waived. See Howe v.

Freeland, 237 Ark. 705,375 S.W.2d 666

(1964). As Professor Michael H. Graham at

the University of Illinois College of Law

points out, there is a different trick to

preserving error in criminal cases in Il? linois. A clear objection on the record is not enough. There must also be a

posttrial motion calling particular at? tention to the error. See People v. Ed? wards, 74 I11.2d 1, 383 N.E.2d 944

(1978). Perhaps the most troublesome traps

of all come from a doctrine called

"opening the door? The idea behind it is an elemental sense of justice. At the start it does not even involve retaliation, just filling in the details. Fed. R. Evid. 106, as the "rule of completeness',' lets the opponent to evidence overcome the

selectivity of the other side and require the opponent to offer the rest of the document or statement in evidence (or

any other document or statement) that

"ought in fairness to be considered con?

temporaneously with it? In other words, offering part of something may open the door to the rest.

Opening the door just sounds like basic fairness. How could it be a trap?

Take a simple case suggested by Irving Younger. The witness on the stand is the plaintiff in the case. He gave a statement to an insurance investigator in which he admitted running a red

light. So on cross-examination you con? front him with the statement (which you did not have to do, since he is a party, but it was the most effective way to use

it). You have opened the door to the

plaintiffs redirect examination. The witness says, "The insurance claims agent told me if I signed that paper I would receive a check in settlement of my claim within a week?

Opening the Door

If you are not ready to call that situa? tion a trap, then how about this case from Professor Paul Giannelli at Case

Western Reserve University? (Before we

start, there is a rule of evidence you need to know. When hearsay is admitted under the Federal Rules of Evidence, Rule 806 ? as a sort of special door

opening rule ? permits the opponent to attack the declarant's credibility. Now you are ready.)

You represent the defendant in a criminal case. We will call him Mark

Huggins. Huggins is charged with

burglary, and his defense is an alibi. He claims he was at his girlfriend's house when the robbery took place. Unfor?

tunately, Huggins had some serious on

the-job training, so he has two prior convictions for burglary in the past three years.

There are other problems as well.

Shortly after he was arrested, Huggins confessed. But in a stroke of good luck, you convinced the trial judge that there was a defect in the warning he was given by the police, so the confession is inadmissible.

But the confession is another reason to keep Huggins off the witness stand. Under Harris v. New York, 401 U.S. 222 (1971), a confession that is inad? missible because of a bad Miranda

warning may still be admissible to im?

peach. If the defendant testifies and says

something inconsistent with what he said in the "inadmissible" confession, then he can be impeached with it on the witness stand. The limiting instruction to the jury that they are not to consider it for its truth is likely to escape them. With all of that, it is not difficult for

you to recommend that Huggins not take the stand, especially because his girlfriend, Emily Richards, will testify to Mark's alibi.

You call Miss Richards to the stand, and she tells about Huggins's being with her while the prosecution claimed he was committing the burglary. Then, at the end of her testimony, she adds ? all on her own ? "Besides, I know he is not

guilty because he told me he did not do it'.'

The prosecutor does not object, and in fact does not even cross-examine

Emily Richards. He has another plan in mind. He has some evidence to offer in rebuttal, and manages to wait until the defense rests its case. That is when he rises and asks to approach the bench.

"Your honor, at this time the prosecu? tion offers the record of prior convic? tions of the defendant as well as the con? fession he gave to the police on

September 23'.'

"But your honor," you reply, "this is

outrageous. The defendant has not testified. He has not even taken the stand'.'

"He does not have to" replies the

prosecutor. "The defense offered the defendant's hearsay denial into evidence

through the testimony of Miss Richards. Under Rule 806, your honor, the people are entitled to attack the declarant's credibility 'by any evidence that would be admissible for those pur? poses if declarant had testified as a witness.'"

A trap. Is there any way out? Perhaps. The

hearsay statement was not requested ?

it was volunteered. Even though the defendant is legally responsible for the statement, and could have objected to

it, the retaliation seems excessive. So

you keep your fingers crossed as you respond, "Your honor, this evidence

may be proper under Rule 806, but it is still excluded by Rule 403. The pre? judicial effect simply outweighs the pro? bative value'.'

Will it win? Good question. Perhaps the most bizarre opening

(Please turn to page 61)

56



Section II: Work Habits and Judicial Temperament

1. Promptness in ruling on pretrial motions.

2. Promptness in rendering written

opinions.

3. Adequacy of research and prepara? tion for hearings, status, and

pretrial conferences.

4. Adequacy of research and prepara? tion of trials.

5. Punctuality in convening court and

keeping appointments in chambers.

6. Decisiveness in rulings and decisions.

7. Efficiency and effectiveness in use of court time.

8. Attentiveness to arguments of counsel and testimony of witnesses.

9. Restraint from usurping role of counsel in questioning witnesses.

10. Willingness to allow counsel suffi? cient time to develop case fully in trial.

11. Accessibility to counsel in chambers.

12. Courteousness toward counsel,

litigants, and witnesses.

13. Willingness to work hard, including not subordinating court and trial schedule to personal convenience.

Section III: Impartiality and Integrity 1. Displays bias based on sex.

2. Displays bias based on race or

ethnicity. 3. Rulings influenced by identity of

lawyers, law firms, or parties involved.

4. Rulings influenced by judge's political or other personal beliefs.

5. Restraint from prejudging the out? come of a case.

6. Restraint from ex parte contacts.

7. Ability to apply the law despite public clamor, prospect of personal unpopularity, notoriety, or unjust" criticism.

Section IV: Professional Competence and Legal Ability

1. Quality of oral rulings: informed decisions based on authority, substantively sound, clearly communicated.

2. Quality of written opinions: substantively sound, intellectually

honest, written with clarity and

precision.

3. Knowledge and application of rules of procedure.

4. Knowledge and application of rules of evidence.

5. Knowledge and application of substantive law.

6. General legal reasoning ability and

comprehension.

7. Ability to understand legal issues and arguments raised by counsel in

highly complex cases.

8. Familiarity with new legal developments.

9. Approach to settlement and resolu? tion of pretrial disputes.

10. Ability to manage case during pretrial proceedings (productive? ness of status and pretrial con? ferences and effectiveness of

pretrial orders). 11. Conduct of jury voir dire.

12. Procedures for preparation and discussion of jury instructions.

13. Ability to instruct the jury correctly, fairly and effectively.

14. Imposition of sanctions against par? ties or counsel.

Section V: Performance in Criminal Cases: The following ques? tions should be answered

only by attorneys who have

participated in criminal matters before Judge Schwarzer:

1. Knowledge and application of Fed? eral Rules of Criminal Procedure.

2. Knowledge and application of con?

trolling substantive criminal law.

3. Ability to understand issues in usual criminal cases.

4. Procedures for taking defendants'

pleas.

5. Consistency in sentencing practices. 6. Overall appropriateness of

sentences imposed.

7. Participation in negotiating pleas. 8. Evaluate Judge Schwarzerds predis?

position, if any, toward criminal defendants as reflected by his ac? tions and demeanor.

9. Evaluate Judge Schwarzerd favoritism, if any, toward defense or prosecution as reflected by his ac? tions and demeanor.

Trial

Notebook

(Continued from page 56) the-door rule comes from Maryland. If you ask your opponent to show you a document during trial and you inspect it ?

for whatever reason ? your oppo?

nent is automatically entitled to offer it in evidence. It is one of those oddities that Marylanders are actually a little

proud of, and they trace it back to United States Fidelity & Guaranty v. Continental Baking Co., 172 Md. 24, 32, 190 A. 768 (1937).

But it is nothing like the opening statement rule. The opening statement rule is shocking partly because of its results and partly because it debunks a

great American myth. We are so used to lawyers and judges repeating the cliche that "opening statements are not

evidence," that we begin to believe it. But it is not entirely true. An opening statement is not evidence for the party who makes it, but it can be evidence when it is offered against him.

Why? Because lawyers are agents who are authorized to speak for their clients. So facts recited in an opening statement may operate as an admission and dispense with the need for the op? ponent to offer any proof of what was said. See McLhinney v. Landsdell

Corp., 254 Md. 7,254 A.2d 177 (1969). And when it is clear from your open? ing statement that you do not have a

case, even assuming that you proved everything you said you would, some states permit it to be the basis for a directed verdict against you. J. Jeans, Trial Advocacy ?8.17 (1975).

The lesson? Be careful to state a case or a defense.

You have noticed, I hope, that all these traps work with virtually no in? terference from your opponent. They are not set by the other side. They are

already there in the law, waiting for

you. The only thing they need to make them go off is an unsuspecting lawyer.

Finally, I am certain that there are hundreds more traps waiting to be ex?

posed. If I am right, then it will not be too long before my files are ready for

"Traps II?

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