SC Lawyer, Nov. 2004, #2. Beyond the Bar - Common Civil Litigation Errors: Don't Let Them Happen to You!.

• Author: Warren Moise

South Carolina Lawyer

2004.

SC Lawyer, Nov. 2004, #2.

Beyond the Bar - Common Civil Litigation Errors: Don't Let Them Happen to You!

South Carolina LawyerNovember 2004Beyond the Bar - Common Civil Litigation Errors: Don't Let Them Happen to You!Warren MoiseTrial advocacy no longer is a required course at the USC School of Law, my alma mater.

It should be. Sometimes grave errors already have been made before the case ever makes its way into the courtroom. This column looks at some potential traps.

Poorly drafted affidavits

It is not uncommon to see parties file inadequate affidavits in support of summary judgment motions, although evidentiary objections rarely are raised during the hearings. Affidavits must comply with the evidence rules and set forth such facts that are admissible in evidence. Cf. Dawkins v. Fields, 354 S.C. 58, 580 S.E.2d 433 (2003) (Waller, J.).

First, the affiant must have personal knowledge of the matter. Fed. & S.C. Rs. Evid. 602. Rambling affidavits filed by the lawyers reciting facts known from file reviews or with legal arguments may fail this test miserably. When an affiant has personal knowledge of the facts, "except those matters and things therein alleged upon information and belief, and as to those, he believes them to be true," these also are inadequate under Rule 602 and SC R. Civ. P. 56(e).

Second, the facts must be admissible in evidence. An unsworn letter or a copy of a webpage, for example, is hearsay unless a proper foundation is set forth in the affidavit. See, e.g., Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970 (4th Cir. 1990).

Finally, the affidavit must show affirmatively that the affiant is competent to testify about the matters in the affidavit. If an expert opinion is required to defeat summary judgment, the affidavit must set forth enough background from which the judge can find the expert to be qualified in her particular field. "I have expertise in the field of biomechanics" is merely a conclusion. A verified complaint may substitute for an affidavit, although it rarely will as a practical matter.

Discovery responses drafted by paralegals and associates

Interrogatory responses can provide devastating impeachment. Frequently the other attorney already knows the answers and sends the interrogatories as a set-up. Some lawyers completely delegate discovery responses to paralegals and associates. Doing so, without checking the answers closely, is a grave error. Basic non-controversial questions (the party's address, past places of employment, and similar matters) rarely are problematic. However, clients don't like to answer embarrassing questions, including questions about prior criminal convictions or other litigation in which they were involved. Answers about the factual description of the dispute itself may be exaggerated or plain wrong. Paralegals and associates sometimes just accept the client's answers. The lawyer who will actually try the case must be more skeptical. If there is any doubt, discovery answers must be double-checked. For example, in response to a question regarding a prior criminal record, a SLED check should be done on one's client if there is any question about his veracity.

Opening the door into otherwise inadmissible evidence

The opened-door doctrine is relentless and far-reaching. Don't let it get you into trouble! See generally G. Ross Anderson, Jr., Opening the Door, in The Bulletin 7 (Fall 1997). Its ugly head pops up when you least expect it. For example, take those all-too frequent criminal trials where the accused has a lengthy rap sheet. Often the accused will stay off the witness stand to avoid impeachment. However, his defense lawyer might stumble into injecting the accused's credibility right back in the trial. How could this happen? Assume, for example, that the defendant's lawyer cross-examines an FBI agent like this: "But isn't it true that my client denied any involvement when you asked him whose drugs they were?" Ouch! The opened-door doctrine is relentless and far-reaching. Don't let it get you into trouble.

Sending otherwise inadmissible information to experts

Expert opinions may be based on hearsay and inadmissible information. By sending this type information to your own expert, you just might be giving a gift to your adversary that otherwise she would be unable to enjoy. Under Rule 705, an adverse party may require your expert to disclose such information at trial. Thus, when an expert reviews but decides not to give credence to or rely upon inadmissible information, an adversary may be able to get the information before a jury. See United States v. A & S Council Oil Co, 947 F.2d 1128 (4th Cir. 1991) (polygraph test results). Be careful what you send to your expert. It might come back to haunt you.

Health insurance

During deliberations in personal injury trials, certain questions come back with uncanny, almost predictable, regularity. Jurors often ask if the plaintiff had health insurance to cover his medical bills. They do not understand or accept the collateral-source rule, which is now a talking point in the tort reform movement.

Realizing that health insurance is inadmissible, defense lawyers rarely try to bring it up. Instead, the issue is indirectly raised by plaintiffs to justify why they did not seek medical care immediately after an injury or during a gap in treatment; the plaintiff testifies that he "could not afford" the treatment. This prejudices the defendant who is barred from showing that the plaintiff actually had insurance to cover the bills. Courts have solved this inequity by giving the judge discretion to permit defendants to introduce the plaintiff's health insurance. Bonaparte v. Floyd, 291 S.C. 421, 554 S.E.2d 40 (1987). And remember, don't cite Rule 411 when trying to bar evidence of health insurance - Rule 411 only addresses liability insurance.

Vague objections and motions for a directed verdict

Appellate courts don't like lawyers to sandbag trial judges with vague objections. The objection must be specific, and the judge must actually rule on it. If the evidence is introduced then ruled inadmissible, in the state courts you must also move to strike. Objecting to the "form of the question" is not a proper trial objection, and some courts hold that it is inadequate for purposes of a deposition.

Similarly, a motion for a directed verdict should be specific. If you want the judge to strike the lost wages claim because the plaintiff never gave an hourly wage rate or testified about the number of hours absent from work, tell her and explain why! Don't simply say that you're asking for a directed verdict "upon the ground that the Plaintiff has failed to prove damages."

Garrulous pleadings

On his CD Songs for a Dying Planet, Joe Walsh has a tune entitled "Shut Up." The song is about people who talk incessantly, and the chorus has a refrain, "[They] can't shut up," "[They] can't shut up." And so it is with complaints and answers. Lawyers just won't shut up. Imagine what might happen if your lay client is asked to explain these sophistic pleadings during cross-examination. The physical pleadings aren't admissible, see Century "21" Shows v. Owens, 400 F.2d 603 (8th Cir. 1968); S.C. R. Civ. P. 43(g), but they're potential fodder for cross-examination. Lengthy complaints with detail after detail might become fruitful sources of impeachment if it turns out that some of the allegations are untrue or gross exaggerations. See generally G. Ross Anderson, Jr. & James A. Patrick, III, Attorney Admissions, in 7 S.C. Lawyer 20 (Nov./Dec. 1995). Inconsistencies between an amended complaint and a prior complaint in the same case may be admissible.

Sometimes lengthy pleadings are strategically useful. However, skillful plaintiffs' lawyers usually draft very short, spare complaints with few details. Defense attorneys too can be garrulous, listing defense after defense. Some defenses are evidentiary defenses that need not be pleaded at all, such as the "sole negligence of a third party." O'Neal v. Carolina Farm Supply of Johnston, 279 S.C. 490, 309 S.E.2d 776 (Ct. App. 1983).

Don't let it happen to you!

The SC Bar is an excellent source of CLEs, publications, and on-line or mail-order legal seminars to give valuable trial tips. Moreover, there are valuable litigation-related publications such as the ABA's Trial Evidence Journal, the SCTLA's Bulletin, and the SCDTAA's Defense Line to give helpful tips. Possibly the best advice is to discuss your case before trial with an experienced litigator for some strategic suggestions. Good luck, and happy hunting!

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