The presentations spanned a broad array of issues and problems regularly confronted in civil litigation.   The strength of the presentations rested not just in their discussion of doctrine and rules, but in the panelists bringing to bear their experience and insights in preparing and trying cases.   Links to the written CLE material and the accompanying PowerPoint presentations will be posted on the Law School’s website later this week.

             Starting the day was Michael J. Cohen (L’86) of Meissner Tierney Fisher & Nichols SC, who underscored the important relationship between pretrial practice and outcomes at trial.  Drawing on his extensive experience as a commercial litigator, Mike addressed the duty to preserve evidence, especially electronic information, when a lawsuit appears on the horizon.  Mike emphasized the need to work with the client to understand what the law requires so that discoverable information is not destroyed, inadvertently or otherwise, thereby exposing the client (or counsel) to sanctions.  Pat Dunphy (L’76) of Cannon & Dunphy SC, addressed a different aspect of pretrial practice, namely, the creative use of requests to admit during discovery.  Pat described how he used requests to admit to obtain a binding judicial admission in a major product liability case that proved determinative of its outcome.

             Turning from the pretrial to the trial setting, the Hon. Patricia J. Gorence (L’77), a federal magistrate judge in Wisconsin’s Eastern District, spoke about the management of exhibits at trial.  Judge Gorence particularly emphasized some of the issues that arise in the use of electronic exhibits of various sorts, including the introduction of e-mails, website pages, and CGI animations.  Lynn Laufenberg (L’75), of the Laufenberg Law Group SC, then undertook the Herculean task of providing an overview of state law governing the admissibility of expert opinion testimony.  Lynn’s masterful lecture featured his own experience in working with a wide variety of experts, including a seasoned dairy farmer who turned out to be the critical witness in a stray voltage case.

             Leading the afternoon session was one of Wisconsin’s most accomplished women trial attorneys, Mary Lee Ratzel (L’81), of Peterson, Johnson, and Murray SC.  Drawing upon her considerable experience in defending complex civil cases, particularly medical malpractice actions, Mary Lee took up a variety of important issues related to expert testimony, including Wisconsin’s unique expert witness privilege, an expert’s reliance on inadmissible evidence, experts whose opinions “shift” between discovery and trial, and the use of learned treatises at trial.  Her partner, James T. Murray (L’74) then surveyed the law governing the lawyer-client privilege.  Jim focused attention on recurring problems regarding inadvertent disclosures by lawyers, the uncertain contours of the privilege where the client is a corporation, and the sticky problem of contacting employees, officers, and ex-employees of a corporate entity.  Closing the day was Timothy S. Trecek (L’93), of Habush, Habush & Rottier SC, who discussed two subjects that haunt personal injury litigation in particular: the collateral source rule and the admissibility of “other accident” evidence.  Tim addressed recent developments in litigation that have unsettled the long-standing rule that a tortfeasor cannot reap the benefits that might accrue to the plaintiff when, for example, a hospital accepts an insurer’s payment for less than the amount of its invoice.  Tim also skillfully laid out the intricate evidentiary steps required when lawyers want to put in proof of other accidents in order to prove causation, notice, or the existence of defects in a product.

             Next year’s conference will feature a docket of similarly stimulating issues and distinguished lawyers.  We have the good fortune to draw from the very deep well of Marquette trial lawyers to assist us.

At trial, the government thus relied heavily on the testimony of the confidential informant, Anderson, who recounted a series of interactions with Cannon and Harris.  Perhaps most damaging to Harris was testimony that Cannon told Anderson that his cousin was coming to Milwaukee with a signficant amount of cocaine.  This testimony, of course, was hearsay: Cannon himself did not testify, and Harris had no ability to cross-examine him.  In order to overcome the hearsay problem, the government relied on the exception for statements by co-conspirators.  But this required the government to prove that Cannon and Harris were indeed co-conspirators, and the strongest evidence of that were the very statements whose admissibility was at issue.  The government’s argument thus had something of a boot-strapping character. 

Making the argument even more awkward on appeal, the jury convicted Harris of possession with intent to distribute, but actually acquitted him on a conspiracy charge. 

The Seventh Circuit nonetheless rejected Harris’s hearsay argument and affirmed his conviction in  United States v. Harris (No. 08-4026) (Flaum, J.).

In order for co-conspirator statements to be admissible, the government must prove the existence of the conpiracy by a preponderance of the evidence, not the higher beyond-a-reasonable-doubt standard that governs the guilt determination at trial.  Even so, the Seventh Circuit conceded that it was a “close question” whether the government satisfied its burden of proof:

[T]he government’s evidence of the conspiracy centers around the disputed hearsay statements themselves (and while Bourjaily permits this kind of bootstrapping, it is not the strongest evidence of a conspiracy) and Harris’s presence in the Excursion when the police officers discovered a kilogram of cocaine.  (p. 9)

The court ultimately found the evidence sufficient, relying on the facts that Harris drove the Excursion from Arkansas to Milwaukee, Harris was carrying “an exceedingly large quantity of cash,” and Anderson’s statements were corroborated in a number of other respects.

As an aside, it is interesting to see the court use the possession of a large amount of cash as a basis for inferring drug activity.  This may be perfectly appropriate in the circumstances, but I wonder to what extent drawing this sort of inference unfairly disadvantages people who live in communities that are underserved by banks or who otherwise lack access to the sorts of financial services that many of us take for granted.  As I discussed in an earlier post, this is not the first time this fall that the Seventh Circuit has been confronted with the question of when criminal activity can be inferred from carrying cash.  Notably absent from these cases is any empirical research on how commonly and in what sorts of circumstances large sums of cash are carried for lawful purposes.

However, a host of recent trends in criminal law are putting tremendous pressure on the old act-based approach and pointing to a new paradigm in which a defendant is punished based on his propensity to commit crime, with little or no regard to the severity of the particular act of which he has been convicted (if, indeed, there has been a conviction at all).  Some examples include the use of relevant conduct in the federal sentencing guidelines, three strikes laws and other sentence enhancements based on prior convictions, felon-in-possession laws, civil commitment of sex offenders, and preventive detention of terrorism suspects.  Such innovations are suggestive of a system in which we punish bad people, not bad acts.  To be sure, there is a wide gray area in which it is unclear whether we are punishing acts or people, but when (for instance) we impose what is effectively a life sentence for the theft of three golf clubs (as was done under the California three strikes law), there can be little doubt that the person, not the act, is the target of our condemnation.

Although sentencing law may most dramatically reveal the competition between the act and propensity paradigms, evidence law is also implicated – perhaps most importantly in Federal Rule of Evidence 404(b), which seems pretty clearly to embrace the act paradigm.  More specifically, the rule states that evidence of other bad acts is not admissible to show the character of a defendant or his propensity to commit crime.  Yet, to judge by recent Seventh Circuit cases, it seems that evidence of uncharged drug offenses  and prior drug convictions are routinely used against defendants in drug cases.  (See, for instance, my post here.) 

Last week, the court shed some light on the Rule 404(b) exceptions in United States v. Conner (No. 07-3527) (Kanne, J.). 

Conner was charged with distribution of crack cocaine in a single transaction on December 20, 2006.  Yet, during Conner’s trial, the government presented the jury with evidence regarding other drug transactions involving Conner before and after that date.  The trial court admitted the evidence as “intricately related” to the charged crime.  The Seventh Circuit, however, determined this to be an improper use of the “intricately related” doctrine.

The doctrine was characterized by the Seventh Circuit this way:

Evidence of other bad acts is admissible when those acts are so intricately related to the charged conduct that they help the jury form a more complete picture of the crime.  Under this “intrictately related” doctrine, courts have admitted evidence that is necessary to fill a conceptual or chronological void, or that is so blended or connected that it incidentally involves, explains the circumstances surrounding, or tends to prove any element of, the charged crime.

Because the other bad acts used against Conner involved some of the same cast of characters as the December 20 transaction, the government argued that the evidence established context and showed the relationship among the co-consprirators.  But Conner was not actually charged with conspiracy — only with the substantive crime of drug distribution.  As to the one transaction that was at issue in the case, the other bad acts did not actually serve to “complete the story.”  Thus, the Seventh Circuit characterized the government’s use of the evidence as a “circumvent[ion]” of Rule 404(b).

The court’s analysis suggests that the “intricately related” doctrine might have more play in a case in which conspiracy was actually charged.  On the other hand, the court seemed generally skeptical of the propriety of the doctrine, characterizing it as “unhelpfully vague” and quoting earlier decisions in which courts had expressed the concern that the doctrine “threatens to override Rule 404(b).”

But, what the Seventh Circuit gives with one hand (narrow interpretation of the intricately related doctrine), the court takes away with the other (expansive interpretation of the knowledge/intent/mistake exception to Rule 404(b)).  Conner lost because, in the court’s view, his other bad acts went to establish his state of mind.

Rule 404(b) does indeed permit the use of prior bad acts to prove knowledge, intent, or absence of mistake.  Thus, for instance, it would be proper to use a defendant’s earlier drug transactions to rebut his claim that he had no idea the white powder in his possession was cocaine.

However, Conner did not present a mistake defense or otherwise clearly contest knowledge or intent.  No matter, said the Seventh Circuit: “By pleading not guilty to the charge and denying any wrongdoing, Conner placed the burden on the government to prove each element of the crime [including intent] beyond a reasonable doubt.”  The court concluded, “Thus, we find that the evidence of Conner’s previous drug transactions was properly directed at an issue other than his propensity to commit the crime.”

The court seems to suggest that the usefulness of prior bad acts in establishing intent negates the possibility that the evidence is being used for propensity purposes.  But these purposes are not mutually exclusive.  Indeed, Conner’s own bad acts seem most clearly relevant to intent only insofar as Conner’s intent to commit other drug crimes supports an inference that he also intended to commit a drug crime on December 20, 2006 — in other words, that he has a propensity to commit drug crimes.

The analysis in Conner contains no clear limiting principle on the admissibility in drug dealing cases of evidence of other drug transactions.  The same criticism that Conner levels against the intricately related doctrine might be leveled against its own expansive interpretation of the knowledge/intent/mistake exception.

One might wonder whether the court is just going around in circles when it narrowly interprets the intricately related doctrine, but then expansively interprets the knowledge/intent/mistake exception.  The court makes clear, however, that it believes there is a real difference between admitting other bad acts under an intricately related theory and an intent theory: in the latter setting, the defendant is entitled to a limiting instruction highlighting for the jury that it should not use the bad acts for propensity purposes.  So, the court apparently does see itself as doing something to preserve the traditional act-orientation of criminal law by channeling other bad acts evidence into the knowledge/intent/mistake exception.  Whether jurors actually pay attention to limiting instructions is another question . . . .

In plaintiff’s race and employment discrimination lawsuit against United Airlines, the trial court’s grant of summary judgment in favor of defendants is reversed as to eight causes of action as they must be decided by the jury.  Furthermore, the trial court’s order sustaining  763 of 764 of defendant’s objections was a manifest abuse of discretion.

I can only do this case justice by stating precisely some of the court’s decision. This is all takes place in the context of a rather ordinary race discrimination in employment claim:

At the same time, the summary judgment procedure has become the target of criticism on a number of fronts.  Some particular criticism is directed to the procedure in employment litigation, including that it is being abused, especially by deep pocket defendants to overwhelm less well‑funded litigants.  More significantly, it has been said that courts are sometimes making determinations properly reserved for the factfinder, sometimes drawing inferences in the employer’s favor, sometimes requiring the employees to essentially prove their case at the summary judgment stage.  Here we confront the poster child for such criticism, in a case involving what may well be the most oppressive motion ever presented to a superior court . . . .

Defendants filed a motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication.  Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded.  And the moving papers concluded with a request for judicial notice of 174 pages.  All told, defendants’ moving papers were 1056 pages.

Plaintiff’s opposition was almost three times as long, including an 1894-page separate statement, papers the trial court would later disparage as “mostly verbiage,” a description with which, as will be seen, we disagree.  Curiously, no such criticism was leveled at defendants’ papers, not even those in reply, papers that defy description.

Defendants’ reply included, and properly, their response to plaintiff’s additional disputed facts.  Defendants’ reply also included, not so properly, a 297-page “Reply Separate Statement” and 153 pages of “Exhibits and Evidence in Support of Defendants’ Reply.”  And the reply culminated with 324 pages of evidentiary objections, consisting of 764 specific objections, 325 of which were directed to portions of plaintiff’s declaration, many of which objections were frivolous.  In all, defendants filed 1150 pages of reply.

Five thousand, four hundred, fifteen pages of material were before the trial court which, following argument, issued its order granting summary judgment, the substance of which order began as follows:

“Upon due consideration . . . and having taken the matter under submission,  [¶] The Court finds as follows:  [¶] Despite its girth, Plaintiff’s opposition to the separate statement of material facts is mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact.”  There followed several pages of discussion which did not consider the evidence favorably to plaintiff, as the law requires.  Then, after granting summary judgment, the order ends with these two one‑sentence rulings:

“2.    Plaintiff’s 47 evidentiary objections are OVERRULED.
“3.    Defendants’ evidentiary objection No. 27 is OVERRULED, and the remainder of the Defendants’ evidentiary objections are SUSTAINED.” . . . .

We have referred to the misleading picture painted by the mass of paper before the trial court, and to the error that resulted.  And the two are undoubtedly related, as what apparently happened is that the trial court did not read all the papers, shown, for example, by the facts that it sustained “objections” to evidence where no objection was set forth and saw a “physical assault” of Avellan despite all the evidence of “arm wrestling.”  While not reading the papers cannot be condoned, it can perhaps be understood, as we hesitate to speculate how long it would take a trial court to meaningfully digest over 2200 pages of separate statements, analyze and rule on 764 objections set out in 325 pages, review it all in light of the applicable law, and then write a proper order.

The incredible volume of material here simply has no place in a system where overburdened trial courts labor long and hard.  Thus, we conclude with some guidance in the event a trial court is ever again confronted with anything remotely close to that here.

Needless to say, the appellate courts rips the lawyers and the trial court another you-know-what.  This case is an evidence/employment discrimination law professor’s dream and why people like Walter Olson rightly believe in some cases that litigation is just plain overlawyered.

I can’t imagine being the lawyers involved in this case and the shame that will inevitably come with being associated with a name that is just too closely related to the word, “nadir,” as in the nadir of all litigation.

Really, read the whole opinion.

So while we wait for a case that is certain to affect a staggering percentage of criminal cases, both pending appeal and awaiting trial, I highly recommend J. Thomas Sullivan’s timely  article, Crawford, Retroactivity, and the Importance of Being Earnest, 92 Marq. L. Rev. 231 (Winter 2008).  To grossly oversimplify things, in 2004 the Supreme Court held its nose and unceremoniously dropped 25 years of case law (and countless law review articles) into law’s dumpster. The discarded doctrine loosely regulated the prosecution’s use of hearsay under the Sixth Amendment’s confrontation clause; its flaccid “reliability” approach had green lighted nearly all forms of hearsay imaginable (and then some).

Crawford v. Washington held instead that the framers had distinguished between “testimonial” and “nontestimonial” hearsay which are subject to vastly different conditions for admissibility. Without belaboring the history here, Crawford triggered seismic –no, tectonic – shifts in the use of hearsay evidence, a feature of every trial. The only glitch was that the Court did not share with us the meaning of “testimonial hearsay” or the reach of hinted-at exceptions for business records, coconspirator statements, or dying declarations.  Hence, we are on tenterhooks to see what comes of Melendez-Diaz.   

Sullivan’s article illuminates Crawford while addressing its impact on the thousands of prisoners convicted before 2004.  He approaches Crawford and the issue of retroactivity with insights based on practical experience and a scholar’s command of law. Sullivan, a law professor, represented a man (Earnest) who spent 24 years in prison before his conviction was overturned based on a retroactive application of Crawford.  The article places Earnest’s story in the context of the doctrinal turmoil that has marked the confrontation clause for decades.   

The article deftly weaves together three different threads.  First, there is the confrontation thread and the several false starts that preceded Crawford. Second, Justice Scalia’s majority opinion in Crawford clearly broke with prior, flawed precedent and unabashedly announced a new rule (though one ostensibly based on the confrontation clause’s history).  Crawford’s novel approach and fresh reading of history raised the issue of retroactivity, namely, who besides Crawford himself benefits from the clause’s rethinking?  In 2007 the Supreme Court unanimously held that Crawford is not retroactive, in accordance with its longstanding “Teague rule.”  In Seinfeldian terms, this meant “no soup for you” for the vast majority of those prisoners convicted prior to Crawford.

The third issue runs to the very core of federalism: What latitude do state courts have in retroactively applying “federal constitutional precedent more broadly than required by federal due process protections” (p. 236)?   In Danforth v. Minnesota (2008) the Supreme Court, according to Sullivan, afforded “states the option of formulating or applying retroactivity doctrines” that deviate from the federal approach in Teague (p. 300).  Sullivan underscores that thus far only New Mexico has fully availed itself of the discretion to apply Crawford retroactively more generously than does federal precedent, and it did so on behalf of his client Earnest. 

In sum, Sullivan’s article is at once an instructive case study, a helpful guide through difficult doctrine, and a template for postconviction litigation possibilities.  Should Melendez-Diaz break still more new doctrinal ground, as seems likely, Sullivan’s article will become all the more salient, particularly in litigating state criminal appeals.          

I particularly enjoyed Dan’s recounting of a colorful early encounter between psychology and evidence law.  In 1907, Hugo Münsterberg, a German psychology professor (pictured above), launched a ”scientific” attack on the premises of Anglo-American evidence law.  Taking up the gauntlet on behalf of the law was the legendary evidence professor John Henry Wigmore, who responded to Münsterberg with what Dan seems quite rightly to characterize as a “savagely brilliant critique.”  Score: Law-1, Psychology-0.

Here is the abstract of Dan’s article: 

Witness credibility is at the heart of every trial. And while it is axiomatic that credibility is left to the jury, evidence law is silent about how one decides whether a witness is accurate, lying, or honestly mistaken. More precisely, a finding that a witness is accurate rests on the following so-called testimonial assumptions: The witness accurately perceived the event; she accurately remembers those perceptions at trial; her testimony (words) accurately describes her memories; and she is sincere (not lying). Neither the law nor science provides a test for determining credibility. Rather, the jury’s life experience and common sense are thought to be sufficient or, more accurately, the only viable alternative.

This article develops several themes. First, the testimonial assumptions recognized by evidence law are products of mainstream thought and culture, an epistemology founded upon lay common sense and popular ideas about how people perceive, remember, and describe events as well as their sincerity. Second, the legitimacy of the modern trial depends upon this correspondence between popular thought and evidence doctrine, yet that correspondence is inadequately understood at present. Third, evidence law is bereft of any systematic approach to determining credibility. Rather, impeachment doctrine consists of ad hoc techniques that lawyers use at their discretion, the assumption being that they are sufficiently adroit and skilled to draw out the strengths and weaknesses related to the testimonial assumptions (credibility).

Set against the modern trial are several notable threats. First, proof that rejects or contradicts the law’s common sense epistemology, particularly social scientific or psychological evidence directed at popular misconceptions relating to credibility, effectively diminishes the jury’s role in fact finding and threatens the trial’s legitimacy. Second, trial lawyers with insufficient skill to use common law modes of impeachment fail to present the fact finder with the information popularly deemed necessary to determine credibility. Third, the vanishing trial risks relegating the trial jury to history’s museum of curiosities while breeding a generation of lawyers lacking fundamental trial skills and adept only at settlement.

The purpose of this article is to assess the testimonial assumptions in light of the law governing the impeachment and rehabilitation of witnesses. Evidence law is understandably reluctant to substitute its common sense underpinnings for the infirmities of modern psychology. Nonetheless, it should strive to better understand its roots in mainstream thought and popular culture if only to better appreciate where and how cultural changes, and psychology’s insights, might assist credibility determinations without undermining the trial’s legitimacy. Impeachment doctrine remains overly fixated on perjury and insufficiently attentive to the problem of the honestly mistaken witness. The article recommends several significant changes in trial practice and evidence doctrine that redress this imbalance without unmooring evidence law from its roots in the community’s sense of credibility.