Dan Berexa's Tennessee Law Blog

July 16, 2019 CLE at the Nashville School of Law - Discover Effective Discovery Strategies

On the evening of July 16, 2019, Dan Berexa will speak at a 3 hour CLE program hosted by the Nashville School of Law “Discover Effective Discovery Strategies.” The program will identify and discuss the rules governing civil discovery in state court and provide strategies to increase the quality of information obtained in discovery. The program includes a 1.5 hour presentation on E-Discovery, taught by John Morris of Nashville Vanguard Law. We hope to see you there. For more information, or to register, go to http://nsl.law/cle-nsl/

How to Use Depositions at Trial

What follows is my article just published in the March 2016 edition of the Tennessee Bar Journal discussing the many ways to use depositions at trial.

Best Practices for Using Depositions at Trial

The law favors the presentation of live witness testimony at trial. Just because a party takes a deposition does not mean it can be used at trial, and even if it can be used it may be only for limited purposes, or under certain circumstances. The purpose of this article is to discuss the many ways that depositions can be used in the trial of a civil case, including uses for proof, impeachment, to refresh recollection, with unavailable witnesses, experts, adverse parties, for completeness and offers of proof. The Tennessee Rules of Civil Procedure (TRCP) and Tennessee Rules of Evidence (TRE) govern the circumstances and purposes for which depositions can be used. Although our focus is on the use of depositions in civil trials, many of the same general principles can apply to criminal cases, to the limited extent depositions are used at trial, and to administrative proceedings, arbitrations and other forms of ADR if the use of depositions is governed or guided by the rules of evidence and procedure.

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ABA Formal Ethics Opinion Addresses Internet Research on Jurors and Potential Jurors

ABA Formal Ethics Opinion 466 (Download Formal Opinion 466) addresses the issue of whether a lawyer who represents a client in a matter tried by jury may research a juror's or potential juror's publically available online presence, such as social media, prior to and/or during trial. The opinion also discusses what ethical obligations the lawyer may have regarding information learned during the review.

The opinion's summary follows:

"Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror.  

A lawyer may not, either personally or through another, send an access request to a juror’s electronic social media. An access request is a communication to a juror asking the juror for information that the juror has not made public and that would be the type of ex parte communication prohibited by Model Rule 3.5(b). 

The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).   

In the course of reviewing a juror’s or potential juror’s Internet presence, if a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal." 

The opinion also raises, but does not take a position on, the issue of whether the standard of care requires trial lawyers to conduct internet research about jurors in connection with jury selection.

Dan Berexa
Nashville, TN

The Recession and its Impact on Juries and their Verdicts.

Times are tough on the economic front. Consumer confidence, 401(k)'s, the Dow and home prices are down. Unemployment, bankruptcy, foreclosures and anxiety are up. Former engines of the U.S. economy have collapsed while others, like Chrysler, are on the verge of failure. The banking system nearly collapsed. Major layoffs are daily news. Even people and companies that are still in good shape have a completely different outlook on the economy, the stability of our institutions and the ability of our government to help resolve the crisis. Conspicuous consumption is out of vogue and cash is king.

How does a bleak economic picture impact jury verdicts? Will jurors become more conservative? Does a case in today's economy have the same value it would have had if it went to trial 18 months ago? Will jurors moderate verdict amounts, or be more likely to find in a certain way if they believe (right or wrong) that their verdict could put a company out of business and more people out of work? A jury that may have been willing to hit Chrysler with tens (or hundreds) of millions of dollars in punitive damages a few years ago might not want to render the verdict that they feel could literally break the company and do further damage to the economy. Some parties who are perceived to be a cause (or beneficiary) of the current economic climate might receive more hostile treatment in the jury room than another who is viewed as a victim?  

Jurors don't ignore what is going on in the world, or their own lives, when they start to form impressions while considering evidence. The outside world also makes its way into the jury room during deliberations. We know that from post trial juror interviews and watching mock trial deliberations. Major events effect us all and often alter our outlook. Other than the Iraq war, and the Virginia Tech massacre, probably the last major national trauma that touched every American, as the current economic situation has, was 9/11. While the causes are dissimilar, and the damage different, the magnitude of the effect is similar and cannot be ignored. 

Ronald Miller of the Maryland Law Blog has asked the question: How will the recession impact jury verdicts? It is a good question. Another question that trial lawyers should also consider is whether they should approach some aspects of a trial a little differently given the current economic situation and prevailing climate?     

Dan Berexa
Nashville, Tennessee

Prof. Paine's "The Ten Commandments of Direct Examination"

This time of the year I try to do a little tidying-up. In the process found a March 2000 issue of the Tennessee Bar Journal that I kept because the cover article was Don Paine's  The Ten Commandments of Direct Examination. This is a great read for and trial lawyers and law students. It compliments Irving Younger's Ten Commandments of Cross-Examination, which I know is still very popular, because I get a lot of hits on my post Revisit a Classic - Irving Younger's "The Ten Commandments of Cross-Examination"

For those of you who have never had the pleasure, Professor Donald F. Paine has taught (and entertained) generations of law students, lawyers and judges. A more gifted teacher - I have never seen. 

Dan Berexa
Nashville, Tennessee

Neat (and Cheap) Trick for Video Depositions

The Trial Technologist's View is a great source for information and tips on trial presentation. Blake Boyd provides great examples of techniques to help ratchet up your presentations for trial, mediation or arbitration. For example, a recent post shows a clip where a video deposition, taken for medical proof, included filming images from the doctor's website. The website contained a demonstration of how a disc surgery, like the plaintiff's, was performed.  Apparently the videographer shot the image directly off the screen of the plaintiff's lawyer's laptop during the deposition. Low tech, cheap and effective.

Dan Berexa
Nashville, Tennessee

More on Social Networking Sites

In my last post I gave a few examples of how social networking sites can be a great source of evidence. If you would like a little more information on social networking sites, trial lawyer and jury consultant Anne Reed has a great article on her Deliberations blog: A Trial Lawyer's Guide To Social Networking Sites.

Dan Berexa
Nashville, Tennessee

Social Networking Sites Can Provide Key Evidence

Prospective employers, law enforcement and college admissions departments are examining social networking sites. Are you?

Social networking sites like Facebook, MySpace and Xanga  can be treasure troves of evidence relating to parties or witnesses. The photos, videos or written posts placed on a social networking site can devastate a case. According to press accounts, early this year Joshua Lipton learned this lesson the hard way. Lipton, who was a defendant in a drunk driving case, was confronted at his sentencing hearing with pictures from a Halloween party, taken a few weeks after his alleged offense. In the photos, he wore a "prisoner" costume complete with "jail bird" written on his orange jumpsuit. Someone posted the photo on Facebook and the prosecutor got a hold of the picture prior to the sentencing hearing. Based on an account in The Everett Washington Herald, the Judge was outraged by the defendant's lack of remorse (for the offense and injury to the victim) and gave him a 2 year prison sentence. 

A few years ago I defended a car wreck case where the plaintiff claimed a neck injury. A week prior to the wreck, the plaintiff made a diary entry on a social networking site describing her long history of severe neck pain and recent course of treatment. The case settled quickly and cheaply after the plaintiff was confronted with the post in her discovery deposition.

There is no limit to what a person may say (or be seen doing) on a social networking site. A college student who faced expulsion for misconduct traced through his posts stated “I never thought something on Facebook would get me into trouble out in the real world.” His mindset is not uncommon and many users don't realize their posts may come back to haunt them when they look for a job, apply to college or appear as a witness at trial. 

Dan Berexa
Nashville, Tennessee

From the NITA Blog: 21 Questions to Consider When Starting a Deposition

James L. McCrystal Jr.'s article contains some great suggestions for covering the "ground rules" at the beginning of a deposition in a way that causes the witness to commit beyond the usual "yes" and "no" answers. The result is better communication during the deposition and more effective impeachment if the witness changes his story at trial. See 's McCrystal's article in NITA Blog

Dan Berexa
Nashville, Tennessee

Google Earth Can be an Effective Tool for Lawyers

A recent post in The Illinois Trial Practice Weblog (Evan Schaeffer) discusses using Google Earth aerial images at trial. A few years ago a student team used Google Earth in a law school mock trial that I was judging. It was used during cross-examination to show all of the truck stops and rest areas that the defendant trucker passed before illegally parking on the side of the interstate. The images of the accident scene were also helpful to explain how the collision occured. The moot court problem was based on a real wrongful death case that my firm handled a few years earlier. The driver claimed he parked on the side of the road because he couldn't find a place to park while he slept. 

Since then I have used Google Earth for accident cases and as a part of asset investigations. The ability to "fly" from one location to another beats static aerial photos. It is cost effective and by now jurors are used to seeing Google Earth on the news. (It is also a nice way for someone buying real property to see what else is in the neighborhood. You never know what may be obscured by tree a line or ridge.)

As Schaeffer points out, you do have to work out the admissibility issues if you are going to use Google Earth visuals at trial. See his post for resources regarding laying a proper foundation.

Dan Berexa
Nashville, Tennessee