Education_-_2nd_Place

Question: What is one of the Most Common Mistakes Made by Trial Attorneys When Cross-Examining an Expert Witness?

 

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ANSWER: One of the most common mistakes made by trial attorneys when cross-examining an opposing expert witness is attempting to attack the expert’s opinion directly or head on.

EXPLANATION: During the cross-examination of an expert witness you rarely want to attack the expert witness directly. Your best bet during cross-examination is to use peripheral or tangential ways of assailing the expert’s views. There is, however, one exception to this general rule that I will address at the end of this post.

To understand how indirect/peripheral cross-examination works, consider this example:

You’re questioning the medical doctor who performed an independent medical     examination of your client (the plaintiff) on behalf of the defense. The doctor testifies that your client’s back problems resulted from preexisting arthritic changes rather than from the automobile accident, as you allege.

If you go with direct questions about the doctor’s opinion (e.g., “Doctor, are you sure that the present problems are the result of preexisting arthritic changes?”), this will likely result in the doctor’s merely reiterating the damaging opinion. Similarly, the near-suicidal inquiry, “Doctor, why are you so sure that my client’s present problems are the result of preexisting arthritic changes?” is likely to evoke an otherwise inadmissible dissertation on, e.g., the inevitability of arthritic deterioration and the number of other Americans afflicted with arthritic problems, or a subjective and unsupported opinion that your client is misrepresenting his condition.

By contrast, peripheral cross-examination is more effective because it focuses on:

  • Matters that the witness can’t deny
  • Work that the witness hasn’t performed
  • Work that the witness has performed and must acknowledge to cast doubt on the expert’s qualifications, objectivity, and thoroughness.

For example, here’s how an indirect/peripheral cross-examination of the defense doctor could go:

  1. Doctor, you have seen my client only once in his life, correct?
    1. That’s right.
  2. That one-time visit occurred approximately 8 months ago, correct?
    1. That’s correct.
  3. That one-time visit lasted only 20 minutes, correct?
    1. Approximately, yes.
  4. The views that you have expressed here today are all based on that one-time, 20-minute examination that took place 8 months ago, correct?
    1. Correct
  5. Doctor, you have patients of your own, do you not, as well as injury victims like my client who are referred to you by law firms?
    1. Yes I do.
  6. In treating your own patients, you try to avoid making an irrevocable medical decision based on a single examination whenever possible, right?
    1. That is correct.
  7. Now, Doctor, you are aware that my client had not missed a single day of work, other than for an occasional cold, for more than 5 years before the day of the accident in question?
    1. That’s what I am informed.
  8. Doctor, you are further aware that my client has not worked a single day since his car was rear-ended by the defendant, correct?
    1. That’s correct.
  9. Doctor, this is the eleventh time in the past 10 years that you’ve testified on behalf of _ _[name of counsel for the defendant]_ _ in a personal injury suit, isn’t that correct?
    1. I think that’s about right.
  10. In each of those ten other cases you testified, as you have testified here today, that you believed the plaintiff’s disability was the result of something other than the fault of _ _[name of defense counsel’s client]_ _, isn’t that correct?
    1. That’s correct, and I still feel that way.
  11. Thank you very much, Doctor.

Nowhere in this sequence does the cross-examiner directly attack the witness’s central opinion that the plaintiff’s present problems are due to arthritis instead of the accident. In fact, that opinion is never even mentioned. Instead, the cross-examiner has undermined the credibility of the doctor’s central opinion thru an indirect or peripheral attack on the doctor’s opinion.

EXCEPTION: The cross-examination of an expert witness is one of the most difficult and daunting challenges facing any trial attorney. If you are brave enough to attempt a full frontal attack on the expert’s opinion then you are going to need help. When preparing for the cross-examination of an expert witness one of the most powerful tools available to a trial attorney is the “Learned Treatise” exception to the hearsay rule found in MN Rule of Evidence 803 (18) which states:

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

In every profession there is at least one publication (and usually more) that experts in that field recognize as a reliable authority and would therefore qualify as a “Learned Treatise” under Rule 803 (18). Although the practical application of the “Learned Treatise” rule is beyond the scope of this post, learning how to use this powerful exception during the cross-examination of an expert witness is a skill that every trial attorney should learn. 

Alan F. Pendleton (Former District Court Judge)

Alan.pendleton@mnlegalupdates.com

Reference: CEBBlog, State Bar of California, Julie Brooks, Sept 16, 2016.

Judge Advises Defendant “You Have a Constitutional Right to be a Dumb-Ass.” Welcome to the Funniest and Filthiest Court Transcript of all time. The Following is an Excellent Example of a Judge Doing Almost Everything Wrong When Dealing with a Disruptive Defendant.

Thank God this happened in Georgia and not Minnesota.

Although I have a great deal of empathy for judges that have to deal with disruptive defendants, the following exchange between Judge and defendant is a glaring example of what can happen when a judge fails to maintain a sense of order and integrity in his/her courtroom.  The end result is a ridiculous courtroom incident creating the perception of a judicial system with “out of control” courtrooms, run by “out of control” judges incapable of dealing with “out of control” defendants in a professional manner.   

As you read and/or listen to the following outrageous courtroom exchange, ask yourself this question:

In order to maintain control in the courtroom and a sense of judicial dignity, at what  point in the following exchange should the judge have STOPPED engaging the defendant, entered a finding of contempt and immediately ordered removal of defendant from the courtroom? First, a little background:

On June 20, 20126, alleged murderer Denver Allen and the Honorable Judge Bryant Durham decided to act out a more profane version of that scene between Principal Vernon and John Bender from one of my all time favorite movies, “The Breakfast Club” in a Georgia Courtroom.

Defendant Allen, accused of committing a deadly jailhouse assault last year, appeared in court seeking to represent himself, claiming his public defender said he would only do “a good job” if he was allowed to give Defendant Allen oral sex. Judge Durham advised him against it. Things quickly went downhill from there. 

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The prospect of spending significant time in contempt of court didn’t deter Defendant Allen from demanding that the judge suck his “donkey” dick. They say that the most dangerous man is one with nothing less to lose. Allen is already going on trial for killing a man, what’s contempt of court on top of a lengthy prison sentence?

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According to the official court transcript what followed was a lengthy exchange in which Allen bragged about his “big old donkey dick” and his fondness for “white boys with big butts” while repeatedly commanding Judge Durham to suck said donkey dick.

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In return, an alternately smiling and red-faced Judge Durham said Allen “looked like a queer” and speculated that “everybody [must enjoy] sucking your cock” but insisted his mouth was likely too small to accommodate the suspected killer’s penis.

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During one particularly surreal moment, Defendant Allen asked the court reporter if she was getting everything down after Judge Durham repeatedly dares Defendant Allen to jerk off right in the courtroom.

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At this point, the Judge decides to tell defendant Allen that he has a “constitutional right to be a dumb-ass,” and that’s when  Allen goes even further to the dark side and threatens to kill the judge, his whole family, and chop his children into bits.dumbass

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THE TRANSCRIPT: While painfully homophobic at times and incredibly vulgar throughout, a complete reading of the entire 19 page comedy routine deserves a read. Check it out here.

THE COMIC-CON ANIMATED VIDEO: The above exchange between Judge Durham and Defendant Allen went viral and became an instant internet sensation. Judge Durham was nicknamed “Judge Fuckman Ass”, and Defendant Allen became “Donkey Dick Defendant”.  What happened in court was so wildly unbelievable and yet somehow completely true, that the creator of the popular Adult Swim show “Rick & Morty” animated and voiced the entire transcript in character as Rick and Morty. The whole thing was premiered last month at the 2016 San Diego Comic-Con and received raving reviews. Click Here to watch the video clip. 

JUDICIAL TRAINING: Although I’m sure Judge Durham is mortified at his new-found internet fame, the inescapable fact is that all judges, at some point in their judicial career, will face a defendant hell-bent on making a mockery of the proceedings. The only difference is the manner in which the presiding judge chooses to respond. My hope is that this blog post will serve as a training springboard and catalyst for judicial discussions on how to best answer the question that was asked at the beginnng of this post: 

In order to maintain control in the courtroom and a sense of judicial dignity, at what  point in the above exchange should the judge have STOPPED engaging the defendant, entered a finding of contempt and immediately ordered removal of defendant from the courtroom? 

NOTE: By all accounts, other than this unfortunate incident, Judge Durham had a reputation as a well liked and respected jurist. In other words, if something like this can happened to a Judge Durham, then on any given bad day it could perhaps happen to you.

Alan F. Pendleton (Former District Court Judge)

alan.pendleton@mnlegalupdates.com

 

IN A JURY TRIAL HOW CAN YOU TELL IF YOUR PRESIDING JUDGE IS INEXPERIENCED, INCOMPETENT OR SIMPLY LAZY?

Blog Update:  If you are getting this blog post via email please note that clicking on the Blog post title (above in blue) will take you to the full blog website containing all past training updates and the one stop “Judicial Resource Library”.

Question: In a jury trial how can you tell if your presiding judge is inexperienced, incompetent, simply lazy, or perhaps some combination of all three?

Answer: In order to give this answer the attention it deserves, you must first  understand the main difference between what an attorney does during trial and what a judge does?

  1. Trial attorneys TRY cases;
  2. Presiding judges MANAGE cases (and no matter how much a judge may want to meddle, never shall the two cross)

All trials (jury, court, criminal, civil, family, juvenile, etc) are incredibly serious business. They represent the culmination of months of hard work for the attorneys; the moment defendants, victims and litigants finally get their day in court and perhaps most important, the right to trial forms the cornerstone to our entire system of justice. And one person is given the awesome responsibility to manage and safeguard that constitutional right — the presiding trial judge.

Show me a trial that is plagued with problems and  numerous  delays, and I will show you a presiding judge that has failed to properly manage that trial. Although some judges routinely blame unexpected problems and delays on the attorneys, truth be told, invariably the root cause is a judicial failure to properly manage the trial. Failure to properly manage a trial is usually the result of failing to conduct a meaningful pretrial management conference immediately prior to commencement of trial. The purpose for a pretrial management conference is to discuss substantive, procedural, evidentiary and other trial management issues.

In order for a judge to properly manage a trial (especially jury trials) it is imperative that he/she conduct a pretrial management conference with both attorneys immediately prior to commencement of trial. Whether the judge handles this pretrial conference in a formal or informal manner is a matter of personal style – as long as key rulings or decisions are, at some point, put on the record outside the hearing of the jury but in the presence of the defendant/parties. 

CIVIL TRIALS: When presiding over civil trials Title 2, Part H of the “General Rules of Practice – Minnesota Civil Trial Book”  identifies the specific issues that should be addressed at the pretrial conference.

CRIMINAL TRIALS: When presiding over criminal trials (misdemeanor or felony) I suggest the use of a Criminal Pretrial Checklist. This checklist covers approximately 2o substantive, procedural and evidentiary topics that should be discussed prior to commencement of trial. I guarantee that following this checklist will significantly reduce the number of unexpected problems and delays during your trial and will greatly enhance the presiding judge’s ability to properly manage the trial.  

For a copy of the full pretrial checklist with rules, statutory and case citations, see Chapter 1 of the “CRIMINAL JURY TRIAL JUDGE’S HANDBOOK” (A Step by Step Guide From the Beginning of Trial Through the Return of Verdict). There is also a direct link to the Handbook under the “Training & Trial Manual” section of the “Judicial Resource Library” on the Blog website. Below is a summary of the Checklist topics:

PRE-TRIAL CHECKLIST (IN CHAMBERS) ………………………………………..

  1. SCHEDULING
  2. WITNESS LISTS
  3. SEQUESTRATION, EXCLUDING PERSONS, COURTROOM CLOSURE
  4. JURY INSTRUCTIONS – PRELIMINARY DISCUSSIONS
  5. CHARGES AND ARRAIGNMENT
  6. STIPULATIONS AND/OR ADMISSIONS
  7.  JEOPARDY ATTACHES ONCE JURY SWORN – DEADLOCKED JURY – MISTRIAL 8. DEFENDANT’S RIGHT NOT TO TESTIFY – PROPER RECORD
  8. DISCOVERY ISSUES
  9. AFFIRMATIVE DEFENSES
  10. WITNESS INCRIMINATION ISSUES
  11. SECURITY/CUSTODY ISSUES (IF DEFENDANT IN CUSTODY)
  12. USE OF WEAPONS/HAZARDOUS EXHIBITS DURING TRIAL
  13. OPENING STATEMENT
  14. EXHIBITS
  15. COMPETENCY OF CHILD WITNESSES – SAMPLE QUESTIONS
  16. PROSECUTORIAL MISCONDUCT
  17. MOTIONS IN LIMINE AND OTHER TRIAL EVIDENTIARY ISSUES
  18. VOIR DIRE PROCEDURES AND GUIDELINES
  19. TRIAL GROUND RULES
  20. JUDICIAL WIKIPEDIA – JUDGES ONLINE BENCH BOOK

JUDICIAL BENEFITS OF USING A PRE-TRIAL CONFERENCE CHECKLIST:

  1. Lets attorneys know that you are prepared and that you expect them to be prepared;
  2. Establishes judicial control and your expectation that the trial will be conducted efficiently and fairly with minimal delays or disruptions;
  3. Establishes judicial credibility, allows you to set the rules for trial and your expectations of the attorneys;
  4. Identify potential problem areas so you can start preparing for them before they actually become problems;
  5. Using the Checklist can reduce the risk of appeals or remands;

A note for the inexperienced trial judge: If you are new to the bench, I cannot emphasis enough the importance of developing good trial management skills. Learning how to manage a jury trial is quite different from trying a jury trial. They involve two very different mindsets. Just because you were good at one doesn’t mean you’ll be good at the other. Eventually you will develop your own trial management handbook. But until that day, I suggest you use the CRIMINAL JURY TRIAL JUDGE’S HANDBOOK  as your starting guide.

Final Disclaimer and Comments on Arrogant Judges: The vast majority of district court judges are excellent trial judges and do not fall into any of the above categories. However, as in most professions, there is a small number of judges that do fall into at least one of those categories. Being inexperienced is ok, being incompetent, lazy or arrogant is not. The sad truth is that many attorneys (and judges) already know which judges are incompetent, lazy or arrogant but believe there isn’t much they can do about it….or is there?  I plan on discussing the topic of arrogant judges and what options are available to attorneys in future posts. 

Title of next week’s blog post is: “How Does a Good Judge Turn Into a Bad Judge and What is the Best Way for Attorneys to Handle a Bad Judge”

Alan F. Pendleton (Former District Court Judge)

alan.pendleton@mnlegalupdates.com

 

WHAT EVERY JUDGE & ATTORNEY NEEDS TO KNOW ABOUT HANDLING EVIDENCE DURING TRIAL – 10 BASIC RULES

BUT FIRST A NOTE ABOUT THE “JUDICIAL RESOURCE LIBRARY”: If you are getting this blog post via email please note that clicking on the above title (should be blue in the email) will take you to the blog website containing all past training updates and the “Judicial Resource Library”. The Judicial Resource Library is designed to be a simple one-click research site for judges and attorneys with hyperlinks to numerous legal research and reference sites, including but not limited to:

  1. State and Federal Legal Search Engines;
  2. Minnesota State Statutes;
  3. Rules of Criminal, Civil, Family & Juvenile Procedure;
  4. Rules of Evidence;
  5. General Rules of Practice (including all 10 titles);
  6. Minnesota Sentencing Guidelines;
  7. Attorney and Judicial Rules of Ethics;
  8. Payable List for Misdemeanor Offenses;
  9. The full text of the Minnesota and US Constitution;
  10. And, of course, all past Judicial Training Updates;
  11. Click on “Judicial Resource Library” to see if this site can help you. 

FOR ATTORNEYS: If it’s your first trial or it’s been a while since you’ve tried a case, here’s a handy list of 10 steps to take when introducing your evidence at trial.

FOR JUDGES: The procedure for introducing evidence during trial is one of many topics that the presiding judge should discuss with both attorneys during the pretrial management conference. 

STEP 1: Mark your exhibit for identification. The first step in offering an exhibit into evidence is to have it marked for purposes of identification. Once an exhibit is marked, it becomes part of the clerk’s record and can be designated as part of the record on appeal. When you should mark your exhibits varies from court to court? Traditionally the court clerk marked an exhibit when a witness was first to be asked about it. You’ve seen this on old TV shows: while the witness is on the stand, the attorney asks the clerk to mark the item “for purposes of identification,” and then everyone waits while the clerk places an identifying mark on the exhibit and logs it in the clerk’s record. This slow and dull process has led many judges to now require that exhibits be premarked, i.e., marked before trial begins or when court is not in session and before counsel begins questioning the witness. This issue should be addressed during the pretrial conference.

STEP 2: Show your exhibit to opposing counsel. Show the exhibit to opposing counsel when you ask that it be marked for identification. If the exhibit was premarked, show it to opposing counsel before you show it to the witness. This issue should be addressed during the pretrial conference.

STEP 3: Show your exhibit to the judge. If an exhibit was copied, hand the clerk both the original exhibit to be marked and a copy of the exhibit for the judge’s personal use. The process for providing a copy of the exhibit to the judge may differ depending on whether your trial is civil, criminal or family, etc. Many judges have personal preferences and different expectations when it comes to this issue.  You need to know what those are. 

STEP 4: Develop a factual basis for admitting your exhibit into evidence. In order to avoid the proverbial “Objection – lack of foundation”, use methods developed during pretrial preparation to establish the required factual basis supporting admission of the exhibit, e.g. ask the witness questions you’ve prepared for this purpose, ask the court to take judicial notice, rely on prior stipulations or perhaps requests for admissions if they provide the factual basis. Any anticipated admissibility problems should be discussed during the pretrial conference.

STEP 5: Offer your exhibit into evidence. Offer the exhibit into evidence immediately after laying the foundation for introducing it into evidence. It is not unusual for an attorney, after laying proper foundation, to forget to actually offer the exhibit into evidence. “Objection, counsel is asking questions about an item that is NOT in evidence.” It is usually a problem easily fixed but you may look inexperienced in the process. Any anticipated admissibility problems should be discussed during the pretrial conference.

STEP 6: Anticipate and prepare for objections to admitting your evidence. Use an “evidence memo” or other pretrial preparation to show the court that the opposing party’s objection or claim of privilege is without merit. Anticipating objections or other admissibility problems and addressing them during the pretrial conference is critical to effective trial management.

STEP 7: Make an offer of proof. An offer of proof must be made to challenge on appeal a trial court’s exclusion of evidence. Minn. R. Evid. 103(a)(2). The only exception to this rule is if the substance of the excluded evidence is apparent from the context within which the question was asked. An offer of proof is a disclosure, made outside the hearing of the jury, of the substance, purpose, and relevance of evidence the offering party seeks to introduce. The legal reasons to make an offer of proof are threefold:

  • To persuade the judge before a ruling is made to admit the evidence;
  • To persuade the judge after a ruling is made to reconsider the ruling; and
  • To create a record for appeal that the judge was specifically aware of the nature of the evidence being excluded.

I encourage you to read Training Update 15-02 titled: Evidentiary Rulings – Preserving the Record – 5 Rules every Judge (and Attorney) Must Know. 

STEP 8: Obtain a definitive ruling on admissibility. It is not enough to object to evidence or to make an offer of proof. The court MUST make a definitive ruling and the parties have an absolute right to insist on a ruling. It is the responsibility of the party objecting to the evidence to make sure the judge actually rules on the objection. The party making an objection should also be sure that the court reporter is present when the ruling is made or, if not present, that the matter is placed on the record at a later point when the reporter is present. See Training Update 15-02. Failing to make a definitive ruling is usually a sign of judicial inexperience. 

STEP 9: Disclose to the jury the substance of the admitted exhibit. Tell the jurors (thru testimony) about the exhibit admitted in evidence to make them aware of the exhibit’s meaning and importance. I have seen many occasions where following the receipt of an exhibit into evidence there was little or no follow up testimony regarding the exhibit leaving the jurors noticeably dissatisfied.

STEP 10: Verify the recorded admission of exhibits into evidence. Make certain that all proffered exhibits have been formally and unconditionally received into evidence and the clerk’s record reflects their receipt. Verify this by reviewing your exhibit log to ascertain whether the court has admitted all exhibits, comparing your exhibit log with the court clerk’s formal record. You can then re-offer any exhibit for which there is any question (and obtain a definitive ruling).

Note: Always double check to make sure that only properly admitted exhibits are taken back to the jury room for deliberations. I once ordered a mistrial following a verdict of guilty because a copy of the defendants criminal history printout somehow got mixed in with exhibits that went back to the jury room.

TOPIC FOR NEXT WEEKS TRAINING UPDATE – I will answer the following question:

QUESTION: In a jury trial how can you tell if your presiding judge is either inexperienced, incompetent or simply lazy? 

Keep fighting for what you know is right.

Alan F. Pendleton (Former District Court Judge)

alan.pendleton@mnlegalupdates.com

NOTICE: I’M CHANGING THE NAME OF THE BLOG BACK TO IT’S ORIGINAL TITLE (Interesting Back Story)

No one can pressure me now:  As many of you know, for many years the name of my training updates (and later the name of the Blog) was the “Minnesota Judicial Training and Education Updates/Blog.” Then a few years ago there was a forced change to the title: MINNESOTA was replaced with PENDLETON. Most of you don’t know why, it certainly was not by my choice.

During the first 5 years the popularity of the training updates soared and the email distribution list grew to more than 4000 attorneys, judges, law schools, law firms, law enforcement agencies, probation departments, domestic abuse organizations and numerous state and private agencies.  As far I could tell the updates had become the most widely distributed training service of its kind in the state.

The turning point came when attorneys began submitting selected training updates as legal authority in court filings and trial memorandums. It was about that time I was told by several high level state employees that at least one member of the Supreme Court was concerned that attorneys were treating the training updates as the official voice of the District Court. Even though the blog included clear disclaimer language to the contrary, I was told in no uncertain terms to remove “MINNESOTA” from the title.

Perhaps unwisely, I initially refused because the updates were my own personal work product and were researched and written on my own time (mostly late evenings and weekends). My belief was that neither the Supreme Court nor anyone else had the right to dictate to me what I could or could not name my own training material. To make a long story short, after some additional pressure I did finally agree to change the name by replacing MINNESOTA with PENDLETON. I’m not sure how many influential people I upset along the way.

However, because I am no longer a District Court Judge the underlying justification for removing MINNESOTA from the blog title no longer exists. Therefore, I am changing the the name of the blog back to its original title. I wonder who that might upset  :-)

The next substantive training blog post will be titled: WHAT EVERY JUDGE & ATTORNEY NEEDS TO KNOW ABOUT HANDLING EVIDENCE DURING TRIAL – 10 BASIC RULES 

Keep fighting for what you know is right!

Alan F. Pendleton (Former District Court Judge)

alan.pendleton@mnlegalupdates.com

July 18, 2016 (2)