Thursday, April 09, 2015
Speaking of hearsay, let me share what I call “JK’s down and dirty hearsay test”. In determining whether or not something is hearsay you have to decide is it coming into evidence for the truth of the facts contained in the statement. If it is, then it is hearsay, but if it isn’t, then it is not hearsay. The question is how do you quickly determine whether something is coming in for the truth of the matter contained in the statement?
My quick test is whether the answer would be relevant if it was false. That is, if we knew that the
facts set forth in the answer or statement were false, would it matter to the outcome of the trial or proceeding?
Here is a quick example: Suppose the issue at a hearing on a motion to suppress is whether an officer making a traffic stop had a reasonable and articulable suspicion to make the stop. She testifies that she ran a L.E.A.D.S. check on the vehicle’s license plate and information came back that the person to who the plates were registered was driving under a court-ordered suspension. Now suppose that the information about the owner’s license was false. The fact that it was false wouldn't matter because the relevance of the information is that the information, whether true or false, gave the officer a legal basis for stopping the car. That’s what I mean by assuming that the information is false and then considering whether its relevance depends on its veracity. I am not saying that this test works in all cases, but it works in a lot of them and it can be applied in the heat of battle that is a trial.
Posted by Team Member at 6:53 AM
Wednesday, April 08, 2015
Nathaniel E Wilkinson, a law student at Cleveland State University's School of Law, recently served as a juror in Judge Joyce Kimbler's courtroom for a civil trial. Here is an article he wrote about the experience. I think that attorneys who do trial work will find it interesting and informative. If you have any questions for Nathaniel about his jury experience or his article he can be reached at (308)440-2284.
A Lighthearted and Educational Account of My Time as Juror 28, or The Time I Got to Hear The Words, “Race to The Toilet,” in a Court of Law
Two weeks ago, I received a piece of mail from the Medina County Court. After a brief mental revisiting of the previous months, I couldn’t think of any laws I had broken, so I opened the letter and discovered that I had been summoned to perform my civic duty as a juror number 28. After filling out the questionnaire, I called to find that yes, Medina County Court of Common Pleas would be seating a jury on Monday, February 9th. I considered attempting to postpone or avoid the duty, but as a first-year law student, I thought that this presented a timely opportunity not often available. While I would miss a few days of class, this chance to participate in a jury trial seemed to offer an educational opportunity that would give me a chance to look at the law from a different perspective. Also, my wife correctly pointed out that $20 a day would be $20 more income than I currently bring home.
As I would be present in court, I put on my best pair of chinos, a nice vertically striped dress shirt and my trusty cashmere coat, and drove to the Medina square. After having a level difficulty finding a parking spot matched only by the NES game Battletoads, I relieved myself of my bevy of weapons (metal detectors), and joined the fray of potential jurors. About 40 citizens of Medina County had reported, ranging from 18 to 80; which would eventually be whittled down to 9; 8 jurors and 1 alternate. The attorney for the Plaintiff addressed the jury pool first, asking questions of each juror about past experiences with the court system, jury selection, occupation, and favorite color. The attorney for the defendant then addressed the jury as a whole, asking general questions about bias and willingness to follow the law. Two jurors were quickly dismissed; one because she was an employee of the defendant (so yeah, pretty clear on that one) and another due to a hearing disability. In a scene right out of a lazily written sitcom, the Judge asked the gentleman if his he would be able to hear the proceedings clearly and without problems. His response of, “Could you repeat that?” was sufficient answer.
After a brief discussion between the court and counsels, the jury had been selected. Eight numbers were called-I was in the clear. Then the bailiff announced the alternate- lucky number 28. As alternate, I would be present for the entire trial, and if any jurors were unable to complete their service, I would serve in his or her stead. The 8 of us assembled in the jury box, when the defense counsel realized that we were missing a juror- number 64. If juror 64 was unable to be located, we would have to start anew with a fresh, and unavoidably less handsome jury pool. Both counsels and the bailiff ran outside yelling, “Juror 64!” with a fervor similar to a lost toddler in WalMart yelling, “Mom!” Luckily, she was found and we were able to be sworn in, ready for the opening statements.
The case at bar was a personal injury civil suit. The plaintiff was a paraplegic who was struck by a restroom door opened by the employee of the defendant grocery store. As the employee was acting within the scope of her employment, the case fell under the doctrine of respondeat superior, so the store itself was the defendant. The door struck her wrist and caused injury. As a paraplegic, the plaintiff’s arms, wrists and hands are integral to her independence. If I hurt my hand, no worries, I’ll get it immobilized and use the other hand- 75% of my extremities would still be functional. The plaintiff, unfortunately, suffered a marked decrease in the quality of her life as a result of the injury, a fact which the plaintiff’s counsel repeated ad nauseum. The main issue of the case, per the plaintiff’s attorney, was whether or not the employee exercised reasonable care in opening the restroom door. He proposed that the extent of the injuries suffered provided evidence that the employee did not use reasonable care when opening the restroom door. Around 90% of the plaintiff’s attorney’s time was split between damages and relating how independent the plaintiff was prior to the incident, despite the fact that opposing counsel was not contesting either of those issues, with the small exception of the extent of damages. The plaintiff also slipped while getting out of her new, shorter bed 13 months after the restroom door incident, and was attempting to recover damages for that as well. Since I recently completed Torts with Professor Peter Garlock, I know pretty much all there is to know about negligence, legal cause, and intervening and superseding causes, and thus was mightily surprised that the plaintiff included that incident. The additional damages were only about $1000, compared to the $12,000 from the restroom door incident, and the requested $100,000 for the reduction in quality of life.
The defense counsel spoke primarily about the employee’s duty to behave reasonably, as well as the foreseeability that her actions would cause injury. Unfortunately for the plaintiff, as the restroom was directly in front of the service desk of the grocery store, there was surveillance footage of part of the incident. To save storage space, the video was recorded at 5 frames per second, which had the unexpected benefit of enabling the viewer to fairly accurately gauge the speed of the door opening during the 5 minutes of video. During the video, four people in total entered the restroom, and the plaintiff’s opening was the least forceful, second only to the plaintiff’s. As the alternate, I was unable to be present for deliberation, but this seemed to be the primary issue among the real jurors. After a short amount of deliberation, the jury found for the defendant.
Things I have learned:
While one jury on one civil case in a relatively small county is not a statistically significant sample, I believe my experience provided some general knowledge that might offer some edification for a prospective lawyer. The jury on which I served consisted of 8 people, 3 men and 5 women. There was a retired schoolteacher, an autoshop teacher, a retired tool maker; everyday, salt-of-the-earth folk. My 5 months of legal education was the greatest amount of legal education in the jury room, Law and Order marathons notwithstanding. When submitting briefs, the reader is presumed to be an educated legal reader, but when addressing the jury, it’s just folks. Normal, everyday folks. These are some observations I made over the course of the 3 day trial. I’m just a 1L, and could be pretty off base with a lot of these, but these seem to reflect the mood of the jury, and my personal feelings as well.
· Time is currency: use it wisely
Jurors don’t necessarily want to be there. I am reminded of the old joke, “Jury of my peers? Anyone who cannot get out of jury duty is not my peer.” I was excited for the opportunity because of my career aspirations, but the retired toolmaker was not equally thrilled. Many view jury duty with a similar disdain as a trip to the dentist: they recognize its import to society, but would much rather be watching The Price is Right, hosted by the inimitable Drew Carey. As early on in the proceedings as the end of voir dire, the jurors were sympathetic to the defendant because the counsel for the defense was sensitive to the time concerns of the jury- he addressed the jury as a group because “if I talk to each one of you, we’ll be here all day.” As the trial progressed, there were occasions where the defense counsel was even more verbose than the plaintiff’s, but they were infrequent and with visible cause. From each juror’s perspective, the jury’s time is a scarce resource that should not be wasted. If a juror feels that one of the attorneys is wasting his time, the juror gets a little cranky. Luckily, there were free donuts, which cheered everyone.
· Choose your battles:
The plaintiff’s counsel spent a great deal of time and the majority of the witnesses establishing his client’s independence and ability prior to the incident, and comparatively little establishing foreseeability of injury or violation of a standard of care. The decline in the plaintiff’s quality of life was completely uncontested by the defense, yet hours were spent convincing the jury of this. As the proverbial horse was dead and buried, the extensive kicking only served to bore and annoy the jury. There was complaining.
· Ask for everything that is reasonable, then stop.
The inclusion of a slip and fall in the plaintiff’s home 13 months after the restroom door incident in the complaint, despite the comparatively small amount of damages, made it appear that the plaintiff was not seeking just compensation, but any money she could get. Oddly, this approximately $1000 claim felt greedier than the much larger $100,000 request for a decline in quality of life because it was so clearly not connected to the original incident. When one’s case is predicated upon engendering sympathy for the plaintiff, one should avoid even the appearance of avarice.
· Don’t have a 2 hour videotaped deposition OR If you have to say something that you don’t want the jury to notice, put it in the middle of a 2 hour videotaped deposition.
We were subjected to a videotaped deposition of the plaintiff’s surgeon with a runtime greater than that of The Shawshank Redemption. Under penalty of perjury, I would not testify that every juror’s eyes were open through the entirety of the film. A film that can hold the average person in rapt attention for 2 hours will make millions of dollars. The vast majority of viewers’ minds will wander during a 2 hour film.
Don’t roll your eyes or look incredulous when the opposition says something you don’t like. It makes you look like a jerk.
· Clearly and simply explain the law
When pushing a restroom door comes to shove, it all comes down to the law. Jury instructions and interrogatories were written in such a way that it boiled down to the jury being finders of fact, not arbiters of their feelings. A simply written and clearly written yes or no question such as, “Did the employee use reasonable care when opening the restroom door?” takes a lot of the juror’s emotion out of it. Some jurors were sympathetic to the plaintiff and felt she should get “something,” even though they felt that neither the employee nor the employer were negligent. However, through the jury instructions and the interrogatories, the sympathetic component was curtailed, and the law was able to be the focus.
Posted by Team Member at 4:42 AM
Saturday, April 04, 2015
Frequently Asked Questions About Private Judging
What is a "private judge"? A private judge is a retired judge who has registered with the Ohio Supreme Court that he or she is interested in serving as a "private judge" pursuant to Section 2701.10 of the Revised Code. A private judge then files a form with the Clerks of Courts for the courts in which the private judge will be hearing cases.
What does Ohio Revised Code Section 2701.10 do? It authorizes retired judges to serve as private judges in Ohio courts. It states that such judges" shall have all of the powers, duties, and authority of an active judge of the court in which the action or proceeding is pending." ( See R.C. 2701.10 (C))
How does a case get referred to a private judge? All the parties to a lawsuit file what R.C. 2701.10 refers to as a referral or submission.
What are the requirements for such a referral or submission? R.C. 2701.10 states that the parties must enter into an agreement with the retired judge who is to serve as a private judge in their case.
Who pays for the private judge? The agreement referred to above sets forth the payment that the private judge shall receive for his or her services.
What else does the agreement do? R.C. 2701.10 requires the parties to pay any expense for the facilities in which the case will be tried and to pay for any personnel needed by the private judge.
Once the agreement is filed, what does the judge on whose docket is pending do? R.C. 2701.10 requires the judge on whose docket the case is pending to order the case transferred to the private judge in accordance with the agreement of the parties.
Does a private judge get to use the active judge’s courtroom for hearings? No. R.C. 2701.10 states that the court in which the case is pending does not have to provide the private judge with facilities, courtroom or personnel. .
Can a private judge perform jury trials? No. The Ohio Supreme Court has held that R.C. 2701.10 does not allow private judges to hear jury trials.
Can a private judge do criminal trials? No. R.C. 2701.10 restricts the use of private judges to "civil actions".
Can a party appeal a decision of a private judge? Yes. All decisions of a private judge are subject to appeal as they would be if made by the judge to whose docket the case was assigned. (See R.C. 2701.10 (D))
Does R.C. 2701.10 contain requirements for the private judge? The private judge is required to hear the case in accordance with the agreement, issue findings of fact and conclusions of law if requested by the parties in accordance with the Ohio Rules of Civil Procedure. The decision issued by the private judge has the same effect as a decision issued by the judge on whose docket the case was pending. R.C. 2701.10 refers to the judges on whose docket the transferred case was pending as an "active" judge.
What are the advantages of a private judge?
Certainty: Private judges are retained to hear a specific case. This means that your case is not one of hundreds pending on that judge's docket. Your case will have priority and will not be continued because a criminal case has precedence. Your case will be tried at a date and time agreed to by the parties and the private judge.
Discretion: Some litigants are reluctant to come to a county courthouse where their friends, neighbors, or relatives may see them. Private judges try the cases in the facilities agreed to by the parties.
Convenience: Private judges are not required to try their cases in the county courthouse. In fact, they usually won't be trying them in the county courthouse. The case can be tried anywhere the parties agree.
Can only certain issues be referred or submitted to a private judge? Yes. R.C. 2701.10 allows a private judge to hear just certain issues in a case.
Is retired Judge James L. Kimbler registered as a private judge? Yes. Judge James L. Kimbler registered with the Ohio Supreme Court to serve as a private judge. Judge Kimbler is currently registered with the Clerks of Courts of Medina, Cuyahoga, Summit, Lorain, Wayne and Ashland counties.
Can Judge Kimbler hear cases in other counties then the ones listed above? Yes. R. C. 2701.10 states that there is no limitation on the number of counties in which a retired judge may serve as a private judge. If you are interested in retaining Judge Kimbler as a private judge in other counties, or if you have any questions about private judges, please contact him at 330-322-6737 or email him at email@example.com
Posted by Team Member at 2:15 PM