The Legal Advocate

A blog brought to you by the national institute for trial advocacy

Monthly Archives: March 2016

Welcome the Newest NITA Advocates

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NITA is proud to announce the 2015 4th quarter recipients of the Advocate Designation. These designations are awarded to a person who has taken a well-rounded set of courses, proving they are serious about trial advocacy.

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  • David Wilkerson | Van Winkle Law Firm
  • Andrew McBride | Adams & Reese LLP
  • Haven G. Ward
  • Thomas Boothe | Law Office of Thomas Boothe
  • Michael Harmon | Smith Hulsey & Busey
  • Kent Luckey | USAA
  • Carol Brockmann | Valley County Prosecuting Attorney’s Office
  • James Stone | Stone Law Firm

If you have any questions on how you can receive the NITA Advocate or NITA Master Advocate Designation, please review the information on our Advocate Designations page, or email customerservice@nita.org.

NITA Movie Review: AN ODD COUPLE AT THE SUPREME COURT

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Written by guest blogger Judge McGahey

firstMondayInOctoberLast month I reviewed The Magnificent Yankee, an autobiographical movie about Justice Holmes. Since the question of Justice Scalia’s replacement is still in the new, for this month’s review, I picked a completely fictional movie about the nomination of the first woman to the Supreme Court: First Monday in October[1] from 1981, directed by Ronald Neame and starring Walter Matthau and Jill Clayburgh.

Clayburgh plays Ruth Loomis, a younger, conservative California jurist who becomes the first woman nominated to the United States Supreme Court. This being Hollywood, we see her receive the news of her nomination at a tennis match, wearing a skimpy tennis outfit. Loomis is confirmed and joins the Court, where she immediately encounters the much older, crusty, extremely liberal Justice Daniel Snow, played by Matthau. Not surprisingly, conflict ensues. Loomis and Snow clash on almost every issue, although the main “case in the plot is one about pornography[2]. Again, this being Hollywood, Snow and Loomis develop a respect and friendship and everything works itself out.

The clash of opposites is a classic movie device. We see it in countless films, including The Odd Couple, in which Matthau played the slovenly Oscar Madison to Jack Lemmon’s net freak Felix Ungar. While Matthau’s portrayal of Justice Snow is clearly supposed to be a reference to the real-life Justice William O. Douglas, it’s hard to believe that the producers of First Monday in October weren’t hoping that audiences wouldn’t think Oscar Madison when seeing Matthau in the movie.

First Monday in October was based on a Broadway play written by Jerome Lawrence and Robert E. Lee, who also wrote the screenplay for the film[3]. The play was not a huge success, in spite of the fact that Henry Fonda played Justice Snow in the original Broadway production. The movie version wasn’t a critical smash either. It wasn’t nominated for any Oscars, although both Clayburgh and Matthau were nominated for Golden Globes.

But there is one interesting “true history” aspect of First Monday in October. Paramount had originally planned to release the movie in February, 1982. However, in July, 1981. President Reagan nominated Sandra Day O’Connor as the actual first woman on the real Supreme Court. The studio rushed First Monday in October into theaters in August, 1981, to take advantage of the publicity surrounding Justice O’Connor’s nomination.
First Monday in October isn’t great art. Its plot devices are a little obvious and its depiction of how men and women relate to one another are more than a little dated. But it has some good laughs and is a fun way to kill some time.

But it might also make you a little sad. For all the philosophical clashes between Loomis and Snow, the underlying theme is one of respect for the law, respect for the Court and, ultimately, the respect for conflicting opinions honestly held. When we look at the way that many people think and talk about the Court now, the difference is obvious. Perhaps we’ll see a return to measured discourse about this Supreme Court in the future.
But not in the near future, I’m afraid.

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[1] The title is an obvious reference to the date each year of the beginning of a new Supreme Court term.

[2] One of the problems for lawyers watching this movie is that the test applied to measure whether something is or isn’t pornography was seriously outdated even at the time this movie was released.

[3] If those names sound familiar, they should. Lawrence and Lee also wrote the play and screenplay for Inherit the Wind.

NITA Faculty Member Admitted to American College of Trial Lawyers

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It was announced yesterday, March 15, 2016 that NITA’s faculty member Kenzo Kawanabe was named a Fellow of one of the premier legal associations in North America, the American College of Trial Lawyers. The induction ceremony took place at the 2016 Spring Meeting of the College in Maui, Hawaii.

NITA’s Executive Director Karen Lockwood had this to say:
“Kenzo is a wonderful faculty member, and a regular member of our Colorado program faculties. He also takes a leading role with others at NITA to focus lawyers on the issues around bias in the courtroom. NITA congratulates Kenzo for this honor bestowed by The American College of Trial Lawyers. We honor the many NITA faculty in that august group.”

You can read more on this announcement here.

What Does It Mean to Use Extrinsic Evidence on Cross-Examination?

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written by NITA guest bloggers Andree Quaresima and Michael J. Dale

Function and Scope of Cross-Examination
Cross-examination is an important part of trial proceedings. There are several purposes connected with cross-examination, such as testing the credibility of the witness, inquiring into relevant issues and facts to build one’s case, and/or challenging the opposing party’s theory of the case. To achieve these objectives, there are different examination tools available to lawyers. The introduction of extrinsic evidence is undeniably one of them. Evidence that is not legitimately before the court is defined as extrinsic. In particular, for the scope of the following discussion, extrinsic is used to indicate evidence other than the questions asked to the witness being cross-examined; it can be a document, another witness’s testimony, a videotape, an audio recording, and so on. However, the scope of cross-examination is limited, and this fact affects the introduction of extrinsic evidence. This blog post discusses the use of extrinsic evidence at trial.

There are two approaches determining the scope of the subject matter of cross-examination. They are the American rule—the majority approach, as well as the one adopted in the Federal Rules of Evidence—and the English rule. Under the American rule, cross-examination is limited to the subject matter of the direct examination and any matters affecting the credibility of the witness. Under the broader English rule, a witness may be cross-examined on any relevant matter. Yet, even in the majority of jurisdictions following the American rule, large discretion is left to the court to allow evidence beyond the stated subject matter. The jurisdictions following the English Rule are Alabama, Kentucky, Missouri, New Hampshire, North Carolina, Ohio, and Texas. Minnesota is a peculiar example because its law represents a mix of the two approaches: the English rule applies only to criminal cases, while the American rule governs any other case. See MINN. R. EVID. 611.

The American Rule
Given the undeniable predominance of the American rule throughout the various jurisdictions in the United States, the discussion focuses on how to introduce extrinsic evidence on cross-examination given the limiting nature of the American rule. The limitation on cross-examination under the American Rule is most commonly referred to as barring questions beyond the scope of direct examination. It is based upon the proposition that the parties should develop their theory of the case by calling their own witnesses. See, e.g., Penn v. State, 574 So.2d 1079 (Fla. 1991). Evidence sought to be introduced on cross-examination that is beyond the scope of direct examination is also referred to as collateral evidence. The purpose of the American rule is to prevent undue confusion of issues and unfair surprise by extrinsic testimony. See People v. Schwartzman, 24 N.Y.2d 241 (N.Y. 1969). Under the collateral matter rule, the cross-examiner is bound by a witness’s answers to questions on collateral matters, except for the witness’s general reputation for truth and veracity. See Casa de Meadows, Inc. v. Zaman, 908 N.Y.S.2d 628 (N.Y. App. Div. 2010). In other words, counsel cannot introduce extrinsic evidence to contradict a witness’s statement concerning collateral matters. A collateral matter is one that has no relevancy to prove or disprove any issue in the action. People v. Rodriguez, 971 P.2d 618, 622 (Cal. 1999).

The boundaries of cross-examination are defined in Federal Rule of Evidence 611—mirrored, for example, in section 90.612 of Florida Codes—which states, “[c]ross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.” Therefore, the introduction of extrinsic evidence on cross-examination is not always allowed, and the discerning factor is the nature of the evidence that is sought to be introduced. In the end, the admissibility of the evidence depends on the purpose for which admission of the evidence is sought.

The Federal Rules and Examples
A common scenario in which counsel seeks to introduce extrinsic evidence, such as a document, a videotape, or the results of a drug test, is when counsel wants to impeach the witness. For example, opposing counsel may be cross-examining a witness who denies having written a letter to the defendant. The lawyer would try to introduce into evidence the letter itself to show that the witness was lying. Alternatively, even before questioning the witness about the underlying facts, counsel may seek to introduce extrinsic evidence to discredit the witness’s credibility. For such purposes, the Federal Rules of Evidence allow the introduction of extrinsic evidence on cross-examination only if it is related to the witness’s character for truthfulness. FED. R. EVID. 608. If the witness denies making a determined assertion—as in the previous example—counsel can introduce extrinsic evidence proving the prior inconsistent statement. FED. R. EVID.614. The rules also allow the use of extrinsic evidence to show prior conviction of the witness. FED. R. EVID. 610.

As a general rule, since cross-examination is limited to the scope of direct examination, extrinsic evidence cannot be introduced when it relates to collateral matters. Therefore, the court would generally consider inadmissible extrinsic evidence to rebut a witness’s statement on a collateral matter.

Of course, a basic exception to this rule of limiting cross-examination to that covered on direct is when the witness himself opens the door for questioning beyond the scope of the direct examination. A witness opens the door by making a specific assertion unrelated to the case at bar; at that point, counsel on cross-examination may introduce extrinsic evidence—that would otherwise be collateral and hence not admissible—to contradict such factual statement. Nonetheless, the limitations impose on the scope of cross-examination are still subject to the court’s discretion. See Wilson v. State, 72 So.3d 331, 334 (Fla. App. 2011).

Examples from the States
It is worth briefly examining several major jurisdictions’ approach to the issue. The analysis will focus on Florida, California, and New York.

Florida
In theory, the law in Florida is slightly different from the Federal Rules, but the results are almost the same. Indeed, even though section 90.609 of the Florida Statutes is the equivalent to Federal Rule 608, there is no mention of the use of extrinsic evidence. Rather, sections 90.610 and 614 of the Florida Statutes allow extrinsic evidence of prior convictions and prior inconsistent statements, mirroring the content of the Federal Rules almost without any change. Additionally, the collateral matter rule applies in Florida as well. The test for determining whether a matter is collateral and not admissible is whether the impeaching evidence would be admissible for any purpose other than the witness’s contradiction.

There are two kinds of evidence that pass this test in Florida: 1) evidence that is relevant to independently prove a material fact or issue, and 2) evidence that would discredit a witness by pointing out the bias, corruption, or lack of competency of the witness. An example of the first category is when a defendant is charged with a certain crime where the intention to defraud is a crucial element (grand larceny, for example), and the prosecutor on cross-examination of the defendant tries to introduce documentary evidence of prior convictions. Where the documents proving previous crimes tend to prove defendant’s intent to defraud, the court would allow them into evidence.

As for the second category, it concerns cross-examination as to bias regardless of whether the subject has been mentioned on direct examination. Therefore, the admission of extrinsic evidence of this second type is broader than the first type. Indeed, bias is considered always material and never collateral. However, it is necessary to make the following distinction. If the witness denies bias on cross-examination, counsel may introduce extrinsic evidence contradicting the witness’s statements. If the witness admits the facts as to bias, counsel is prohibited from introducing extrinsic evidence of bias. FLA. STAT. § 90.608(2). There is a further limitation: evidence of bias may be inadmissible if it unfairly prejudices the trier of fact against the witness or misleads the trier of fact. Breedlove v. State, 580 So.2d 605, 609 (Fla. 1991). When counsel seeks to introduce exhibits during cross-examination, some level of discretion is left to the court. However, courts are not always “generous” because, in some cases, they refused to allow counsel to introduce exhibits on cross-examinations. See King v. State, 89 So.3d 209 (Fla. 2012).

Sometimes the admissibility of extrinsic evidence in Florida has been described as a pure relevancy issue. Such an approach seems closer to the English rule, at least nominally. For example, one appellate court has stated that every time material is offered into evidence to attack witness’s credibility on a material issue, such evidence is relevant according to section 90.401 of the Florida Statutes. Special v. Baux, 79 So.3d 755, 759 (Fla. App. 2011). On the other hand, when the trial court in Special considered such evidence as collateral impeachment, the appellate court interpreted such language as “another way of saying that the line of questioning was irrelevant,” and based its reasoning on the relevancy issue. Id.

California
The California rules of evidence are organized differently from the Federal Rules. The numbering and the titles are distant from the language used in the Federal Rules. However, the following overview of these state systems shows that regardless of the formal organization of the rules, courts tend to follow the federal principles and the results do not considerably differ.
California’s legislation, notwithstanding the formal organization and naming of the rules, mirrors the federal system. California is stricter than Florida in limiting the scope of cross-examination. Even though section 773 of the California Evidence Code states: “A witness examined by one party may be cross-examined upon any matter within the scope of the direct examination by each other party to the action in such order as the court directs,” the courts’ interpretation restricts this delineation of the scope of cross-examination. The questions on cross-examination are still subject to a relevancy check: only relevant issues are admitted. Even though irrelevant evidence was presented on direct examination because of the failure to properly object, the door is not open to questioning into such matters on cross-examination. See, e.g., People v. Smithey, 978 P.2d 1171 (Cal. 1999); People v. Johnson, 40 Cal. Rptr. 105 (Cal. App. 1964).

The collateral matter rule applies in California as well. Here, the test for relevancy on cross-examination is whether the question calls for a response that might have been proved as an independent fact. However, collateral matters are questionable for the purpose of impeachment. The most common situation in which the issue of extrinsic evidence arises is when counsel seeks to impeach the witness in reply to the witness’s denial of some facts or previous statements and introduces evidence proving that the witness is lying. Section 770 of the California Evidence Code allows the introduction of a witness’s prior inconsistent statement when 1) the witness was examined and was given the opportunity to explain or deny, 2) the witness has not been excused from giving further testimony in the action.

New York
The layout of the rules of evidence in New York is different from the other states and the Federal Rules. Interestingly, the New York rules of evidence are included in the rules of procedure and, therefore, are divided between civil and criminal. Notwithstanding this structure, courts tend to apply the same principles governing the federal system and operation of evidence rules, and refer to the Federal Rules to interpret the matters.

Generally, when a witness is testifying to a fact material to the case, the adverse party may challenge the witness either during cross-examination or by introducing other evidence. New York follows the typical collateral matter rule—the introduction of extrinsic evidence is allowed only to reply to the witness’s answers on non-collateral matters. See Casa de Meadows, Inc. v. Zaman, 908 N.Y.S.2d 628 (N.Y. App. Div. 2010). A matter is deemed collateral when 1) the issue is not relevant to some issues in the case other than credibility; 2) proof of the issue is not independently admissible to impeach the witness, and if proven, the issue would show only that the witness had acted deceitfully on a prior unrelated occasion. Beyond these two clear cases of collateral matters, the determination of what evidence can be introduced for the purpose of impeachment lies within the discretion of the trial court. In New York, courts allow extrinsic evidence on collateral matters for impeachment purposes when it relates to the witness’s general reputation for truth and veracity.

Keeping an Eye on the Hearsay Problem
Once the admissibility of the extrinsic evidence has been determined, there may still be an issue of hearsay that may lead to the exclusion of the evidence. For instance, on cross-examination of a plaintiff in a motor vehicle accident, defendant’s counsel seeks to introduce the accident report to prove his case and/or contradict the plaintiff. In such cases, the accident report may be admitted because it may contain an admission of a party opponent. See McCoy v. Gorenstein, 282 A.D. 984, 125 N.Y.S.2d 683 (3d Dep’t 1953). Otherwise, the evidence would be excluded because of the hearsay rule. This example is a simple reminder of the necessity to take into consideration hearsay, even though the extrinsic evidence is otherwise admissible because it is non-collateral, relates to bias, or is aimed at proving the witness’s character for truthfulness.

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Andree Quaresima is a graduate of Roma Tre University in Rome, Italy, and is a dual degree student at Nova Southeastern University College of Law. She can be reached at aq91@nova.edu.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at dalem@nova.edu.

Federal Judge Merrick Garland Tapped as Scalia Successor

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written by Marsi Buckmelter

President Obama this morning named Judge Merrick Garland as his nominee to succeed Associate Justice Antonin Scalia on the Supreme Court of the United States.

Judge Merrick is the chief judge of the United States Court of Appeals for the District of Columbia Circuit, a spot he has held since his 1997 appointment by President Clinton. Prior to joining the D.C. Circuit, he worked as a federal prosecutor in the U.S. Department of Justice and a corporate litigator at Arnold & Porter. He is a Harvard Law School graduate and a former clerk to Justice William J. Brennan, Jr. of the Supreme Court and to Judge Henry J. Friendly of the U.S. Court of Appeals for the Second Circuit. Judge Merrick was on the short list of President Obama’s potential nominees in 2010.

The seat on the high court bench opened last month upon the death of Justice Scalia, then vacationing on a private ranch in Texas. He was 79.

Judge Merrick’s time on the Circuit Court bench was profiled by SCOTUSblog in 2010. See the White House nomination website and the New York Times for more information on today’s nomination.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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