Rules of Civil Procedure, Rules of Family Court Procedure, and Rules of Civil Appellate Procedure were updated effective September 1, 2020. -CCE
03 Thursday Sep 2020
Posted Court Rules, Courts, Minnesotain
≈ Comments Off on Head’s up! Minnesota Court Rules Updated.
Rules of Civil Procedure, Rules of Family Court Procedure, and Rules of Civil Appellate Procedure were updated effective September 1, 2020. -CCE
28 Thursday May 2020
Posted Legal Technology, Recent Links and Articles, Texas Supreme Courtin
≈ Comments Off on Texas Online Court System Attacked By Ransomware.
Mr. Caughfield reports that the Texas Office of Court Administration was attacked by ransomware in May. According to Mr. Caughfield, Texas refused to pay the ransom and shut down their systems. They are doing their best to work around the problem.
In my state, we have had our share of navigating changing rules and procedures due to COVID 19. I cannot imagine the disruption caused by attacking the court’s online systems. Imagine trying to find out the status of your case using social media.
Mr. Caughfield, a former IT professional, gives insight about how ransomware works and what we can do to keep our computer systems safe. It is excellent advice and well worth the read. -CCE
13 Wednesday Dec 2017
Most Popular South Carolina Blawgs, Blawg Search, Justia
For my paralegal friends in South Carolina, here’s the top legal blogs in South Carolina sorted by popularity. There’s a little bit of everything here, and several caught my eye. It will take a while to digest it all. I recommend bookmarking this site, and visiting it often. -CCE
06 Wednesday Dec 2017
Posted Appellate Law, Appellate Writing, Citations, Citations to the Record, Court Rules, Courts, E-Briefs, E-Filing, Federal District Court Rules, Legal Writing, Local Rules, State Appellate Courts, Style Manualsin
≈ Comments Off on Style Guide for the United States Supreme Court.
The U.S. Supreme Court’s Style Guide, by Louis J. Sirico, Jr., Legal Skills Prof Blog
When I was starting out in my paralegal career, I created cheat sheets for filing motions and briefs in state and federal district courts. The rules, especially for federal circuit court briefs, are complex and require checking multiple sections, local rules, e-filing rules, and your judge’s personal court rules (if any exist). I found these cheat sheets were the most popular handouts at my legal writing courses and paralegal seminars, and included them in the Appendix of Practical Legal Writing for Legal Assistants.
Regardless of where you are in your paralegal career, I recommend creating a similar cheat sheet for yourself. Updating your cheat sheet when the rules change force you to examine every addition or revision. Keeping your cheat sheet current will reinforce the rules in your mind, and will help you stay on top of your game.
When it came to analyzing rules for the U.S. Supreme Court, I passed. I left it to the professionals who format and print these briefs for a living. Now, at last, the U.S. Supreme Court’s Style Guide is available for all. -CCE
31 Thursday Mar 2016
Posted Attorney Discipline, Bankruptcy Court Rules, Bankruptcy Law, Diligence, Legal Ethics, Oklahoma Supreme Court, Sanctions, Technologyin
≈ Comments Off on The Oklahoma Supreme Court Sanctions Attorney for Computer Illiteracy.
Attorney Discipline, Bankruptcy Court, Computer LIteracy, Legal Profession Blog, Mike Frisch, Oklahoma, William P. Statsky
Oklahoma Accepts Computer Illiteracy As Mitigation: Censure Imposed, by Mike Frisch, Legal Profession Blog (with hat tip to William P. Statsky!)
No doubt you have seen posts here and elsewhere that discuss whether computer competency is now required due diligence for attorneys. The Oklahoma Supreme Court bench-slammed an older attorney for his lack of computer literacy. But, before you make up your mind, read the dissent. -CCE
13 Wednesday Jan 2016
Posted Oklahoma Civil Appellate Procedure, Oklahoma Court of Criminal Appeals, Oklahoma Supreme Courtin
≈ Comments Off on OSCN Adds Nine More Oklahoma Counties.
OSCN Kicks off the New Year with Nine more District Courts added to its Case Search, OSCN (Oklahoma Supreme Court Network)
OSCN has been around a while. Oklahoma actually has two websites and, between the two, you can access every county in the state. The second website, ODCR, is useful, but not as sophisticated as OSCN. Both websites allow you to look up cases by county, name, or case number. OSCN allows free access to the hyperlinks that give you access to filed documents. ODCR charges a monthly fee for that access.
The larger counties are found on OSCN. With some exceptions, you can access everything that has been filed in the case in a relatively short time after it was filed. ODCR can be a bit slower to post filed documents.
Happily nine more county district courts have moved to OSCN, which is discussed more fully in this post. OSCN provides more than a method to access a court case’s docket and the documents filed in the case. It is also a great resource for Oklahoma case law, statutes, Attorney General opinions, and more. A very handy tool. -CCE
On January 7, 2016, the Oklahoma Supreme Court added nine additional district courts to its online case search. With this addition, visitors to the OSCN website now have the capability to search public records in 34 district courts and in the Appellate Court. This free service provides the public a convenient way to search for court records by case number, name, date of birth, and other identifiers. Search results are fast, and case information is available almost immediately after being processed by the court clerk’s office. In addition to online case information, site visitors may view court-related documents online; however, documents availability will vary by district court. . . .
20 Sunday Dec 2015
Posted Education, Limited License Legal Technician Program, Paralegals/Legal Assistants, Utah Supreme Courtin
≈ Comments Off on Utah Lawyers Not Yet Ready To Accept Limited Paralegal Practitioners.
A New Kind Of Paralegal Is Coming To Help Utahns Navigate The Court System, by Jessica Miller, The Salt Lake Tribune (published December 14, 2015)
There are issues with how Utahns access their justice system, a Utah Supreme Court justice said.
Many people either can’t afford lawyers, Deno Himonas said Monday, or simply don’t want to hire one to help them navigate the court system as they file for divorce, settle debts or resolve eviction issues. . . .
To that end, the Utah Supreme Court has approved the creation of a new legal profession: limited paralegal practitioners.
* * *
Creating a new career field from the ground up won’t be without challenges, however.
One of the biggest hurdles may be getting Utah lawyers to support the program. The task force report said 60 percent of lawyers recently surveyed by the Utah State Bar either disagreed or ‘strongly disagreed’ with a proposal to explore limited licenses for certain practice areas.
19 Saturday Dec 2015
Posted Limited License Legal Technician Program, Paralegals/Legal Assistants, Utah Supreme Courtin
≈ Comments Off on Utah’s Major Decisions About The Paralegal Profession.
Limited Legal Licensing, National Center for State Courts, Non-Lawyers, Paralegals, Utah Supreme Court
Utah made some major decisions about the paralegal profession in 2015. In August, the Utah Supreme Court, Utah State Bar, and National Center for State Courts took a hard look at the role of non-lawyers:
Non-Lawyer Legal Assistance Roles – Efficacy, Design, and Implementation, Thomas M. Clark, Ph.D., National Center for State Courts (August 2015)
Non-Lawyer Legal Assistance Roles
In November 2015, the Utah Supreme Court’s Task Force also tackled limited legal licensing of non-lawyers:
Utah Supreme Court Task Force to Examine Limited Legal Licensing
You can find both here at the Utah Courts website under Publications/Court Reports:
15 Sunday Nov 2015
Posted Certification, Paralegals/Legal Assistants, Regulation, South Carolina Supreme Courtin
≈ Comments Off on South Carolina Supreme Court Creates Board of Paralegal Certification.
Board of Paralegal Certification, Edward Nelson, examiner.com, NY Public Policy Examiner, Paralegal Certification, Supreme Court of South Carolina
South Carolina Supreme Court creates a State Board of Paralegal Certification, by Edward Nelson, NY Public Policy Examiner, examiner.com (with hat tip to William P. Statsky)
Today [November 11, 2015], the South Carolina Supreme Court issued an Order which gives legitimacy to Rule 429 of the South Carolina Appellate Court Rules (SCACR) and creates the Board of Paralegal Certification where paralegals can voluntarily apply to become certified with the State of South Carolina. According to the Supreme Court, ‘The purpose of certification of South Carolina’s paralegals is to assist in the delivery of legal services to the public by identifying individuals who are qualified by education, training, and experience and who have demonstrated knowledge, skill, and proficiency to perform substantive legal work under the direction and supervision of a lawyer licensed in South Carolina.’
This is a tremendous Order from the South Carolina Supreme Court issued on November 12, 2015. The Board of Paralegal Certification shall be formed of five (5) attorneys in good standing with the South Carolina Bar and four (4) paralegals certified under the program which constitutes a nine (9) member board. . . .
13 Saturday Jun 2015
Posted Jury Instructions, Legal Writing, Oklahoma Supreme Courtin
≈ Comments Off on New And Amended Oklahoma Uniform Jury Instructions – Juvenile.
Order Adopting New and Amended Oklahoma Uniform Jury Instructions and Verdict Forms – Juvenile.
On June 8, 2015, The Oklahoma Supreme Court published its new and amended Uniform Jury Instructions and Verdict Forms – Juvenile. The District Courts of the State of Oklahoma are to implement these instructions effective thirty days from the date of the Order. -CCE
23 Saturday May 2015
Posted Family Law, Limited License Legal Technician Program, Paralegals/Legal Assistants, Regulation, Unauthorized Practice of Law, Washington Supreme Courtin
≈ Comments Off on Limited License Legal Technicians – Can They Really Practice Law?
Future or Folly: Limited License Legal Technicians, by 2Civility, Illinois Supreme Court Commission on Professionalism (with hat tip to William P. Statsky)
It’s graduation time. This year, there is a brand new class of graduates in the State of Washington: Limited License Legal Technicians (LLLTs). These graduates are from a unique legal educational program—not a traditional law school. Yet they will eventually have a law license to perform limited legal services in family law. . . .
16 Saturday May 2015
Posted Appellate Law, Damages, Health Law, Litigation, Negligence, Texas Supreme Courtin
≈ Comments Off on Texas Supreme Court Agrees That Compounding Pharmacy Is “Health Care Provider.”
Compounding Pharmacy, Health Care Provider, Health Law, Implied Warranty, Texas Medical Liability Act
Texas Supreme Court Holds That Compounding Pharmacies Are Health Care Providers Under Texas Medical Liability Act, by Elinor H. Murarova, Duane Morris Health Law Blog
On April 24, 2015, the Texas Supreme Court dismissed claims against a compounding pharmacy and its individual pharmacists which alleged negligence in compounding a lipoic acid medication, finding that the defendants were health care providers entitled to the protections in the Texas Medical Liability Act (‘TMLA’).
In the case Randol Mill Pharmacy et al. v. Miller et al., Case No. 13-1014 (Tex. Sup. Ct.), the plaintiff’s physician prescribed and administered weekly intravenous injections of 200 mg/ml lipoic acid, an antioxidant supplement. The plaintiff alleged that she underwent nine weeks of treatment without incident, but in the tenth treatment she suffered a severe adverse reaction and as a result was hospitalized for several weeks, received multiple blood transfusions, and went permanently blind in both eyes. Randol Mill Pharmacy compounded the lipoic acid that allegedly caused the adverse reaction.
In her complaint against the compounding pharmacy and its individual pharmacists, the plaintiff alleged that these defendants gave inadequate and inappropriate warnings and instructions for using the compounded lipoid acid; that the compounded lipoid acid was defective, ineffective and unreasonably dangerous; and that the compounding pharmacy and pharmacists generally breached implied warranties with respect to the design, manufacture, inspection, marketing, and/or distribution of the compounded lipoid acid. . . .
19 Monday Jan 2015
Posted Appellate Law, State Appellate Courts, Tax Lawin
≈ Comments Off on Tax Time Is Coming – Again.
Accounting, Federal Taxes, IRS, Payroll Deductions, Retirement Taxes, Self-Employment Tax, State Taxes, Tax Law, U.S. Tax Court
A new year. New tax laws. Regardless of whether you do your own taxes or use a trusty accountant, it’s time to start getting your ducks in a row. -CCE
Bankrate – Tax Laws and the IRS
Calculator for all types of things: taxes, payroll deductions, self-employment taxes, retirement plan tax deductions, and 125 cafeteria plans.
Income Tax – Cornell Legal Information Institution
Federal statutes, regulations, U.S. Supreme Court, U.S. Circuit Courts, and U.S. Tax Court cases, and references to other sources.
Tax, Accounting and Payroll Sites Directory
IRS – Tax Law Questions
Tax Law: Guide to Taxation Law
IRS – Tax Code, Regulations and Official Guidance
17 Saturday Jan 2015
Posted Appellate Law, Appellate Writing, Legal Writing, Louisiana Supreme Court, Readabilityin
≈ Comments Off on The Right Way to Assemble Attachments To Appellate Supervisory Writs.
Appellate Law, Appellate Procedure, Appellate Writs, Legal Writing, Louisiana Civil Appeals, Raymond P. Ward
Practical Tip For Assembling A Writ Application, by Raymond P. Ward, Louisiana Civil Appeals
Today [January 14. 2015] I started working on an application to the court of appeal for a supervisory writ, and was reminded of my # 1 tip for this task: the first thing you do—before you write a word—is assemble the attachments. Uniform Rule 4-5 lists the attachments that must be included. I like to put them all together and give them provisional page numbers before I start writing the application itself, starting with A1, A2, etc. If your attachments are in PDF (if they’re not, they should be), putting them together and page-numbering them is a snap with Adobe Acrobat or other PDF-handling software.
Assembling the appendix on the front end has at least two advantages. First, when you draft the writ application, you can include pinpoint citations to items in the appendix. Second, you find out immediately if you’re missing something that you need (such as the hearing transcript).
There is one little hitch to my system: Uniform Rule 4-5(B) requires all pages of the application, including the application itself and all attachments, to be consecutively numbered. And if you don’t know how long the application itself will be until you write it, you don’t know until the end of the process the number of the first page of the attachments. But this problem is easy to solve. Once the application is in almost-final form, you know how long it will be. If it’s 25 pages, you know that the number of the first page of attachments will be 26. So when I’m finalizing, say, a 25-page application, I just add 25 to all my “An” citations to the attachments and remove the “A”. A1 becomes 26, A2 becomes 27, etc. Is this time-consuming? A bit. But not nearly as time-consuming as trying to fill in totally blank citations to the attachments.
Which leads to another tip: when, in writing a writ application, you cite one of the attachments, cite it by its consecutive-page number. If it’s a multi-volume writ application, cite by volume and page number. Example: “See writ app. vol. 2 p. 301.” Your job as the writer is to make it as easy as possible for the reader to locate what you’re citing. So give the reader the information needed to instantly locate whatever it is you’re citing.
04 Sunday Jan 2015
Posted Child Molestation, Criminal Law, Criminal Records, Juveniles, Pennsylvania Superior Court, Sex Offender Registry, Sexual Assaultin
≈ Comments Off on Law Changes For Juvenile Sex Offenders.
Commerce Clause, Juveniles, Megan's Law Registry, Sex Offender Registry, Sexual Offenders Registration and Notification Ac
Pennsylvania Top Court Strikes Down Law On Juvenile Sex Offenders, by Allison Sacriponte, JURIST Blog
The Pennsylvania Supreme Court [official website] ruled [opinion, PDF] 5-1 last week that the requirement that all sex offenders who were juveniles at the time of their crimes must remain on the Megan’s Law Registry for life is unconstitutional. The court upheld a 2013 decision by a York County judge that struck down portions of the Sexual Offenders Registration and Notification Act (SORNA) [text; JURIST news archive]. The court declared the law unconstitutional because it allowed no appeal and assumed that all juvenile sex offenders posed a high risk of committing crimes as adults, even though according to studies, barely one percent of them commit new crimes. In addition to public contempt, being on the Megan’s Law Registry required offenders to report quarterly to state police and report changes of address, job or personal appearance within three days.
In June 2013 the US Supreme Court [official website] ruled [JURIST report] that the federal government can compel a convicted sex offender to register with the SORNA even if the offender completed his sentence before SORNA was enacted. In February 2009 a judge in the US District Court for the Eastern District of California [official website] held that the statute violates the Commerce Clause [text] of the US Constitution by making it a federal crime for a sex offender to move to another state while failing to register in a nationwide database. Sex offender laws have been increasingly criticized [JURIST report] for limiting residence options and promoting ostracization.
14 Sunday Dec 2014
Posted Arizona Court of Appeals, Criminal Law, Evidence, Justice Reform, Murderin
≈ Comments Off on Scathing Report on Arizona’s Criminal Justice System.
Arizona Court of Appeals, Bob Christie, Criminal Justice System, Criminal Law, Criminal Prosecutor, Debra Jean Milke, Evidence, Huff Post Crime, Jacques Billeaud
Case Tossed Vs. Debra Jean Milke, Woman Held 22 Years In Son’s Death, by Jacques Billeaud and Bob Christie, Huff Post Crime
In a scathing critique of Arizona’s criminal justice system, a state appeals court on Thursday ordered the dismissal of murder charges against a woman who spent 22 years on death row for the killing of her 4-year-old son.
The Arizona Court of Appeals leveled harsh criticism against prosecutors over their failure to turn over evidence during Debra Jean Milke’s trial about a detective with a long history of misconduct and lying. The court called prosecutors’ actions ‘a severe stain on the Arizona justice system.’
A three-judge panel of the appeals court said it agreed with Milke’s argument that a retrial would amount to double jeopardy.
The failure to disclose the evidence ‘calls into question the integrity of the system and was highly prejudicial to Milke,’ the court wrote. ‘In these circumstances — which will hopefully remain unique in the history of Arizona law — the most potent constitutional remedy is required.’ . . .
22 Saturday Nov 2014
Posted Bankruptcy Law, Employment Law, Illinois Supreme Court, Pension Rightsin
≈ Comments Off on Illinois Pension Law Ruled Unconstitutional.
Bankruptcy, Constitution Law, Detroit, Employment Law, JPMorgan, JURIST, Municipal Debt, Pension Rights
Judge Rules Illinois Pension Law Unconstitutional, by Elizabeth LaForgia, JURIST (Supported by the University of Pittsburg School of Law)
An Illinois judge on Friday ruled [opinion, PDF] a law intended to fix the pension crisis in the state violates the Illinois constitution. Sangamon Country Circuit [official website] Judge John Belz ruled in favor of state employees and retirees who sued to block the law. Last December, state lawmakers passed [JURIST report] the bill [text, PDF], which amended the state’s pension plan in an effort to cut spending and lower the state’s debt. The law would raise the retirement age and lower annual increases in pensions to retired employees, which would be based on the number of years worked. Public employee unions challenged the measure under the Pension Protection Clause of the Illinois Constitution [materials], arguing that the constitution prohibits reducing benefits or compensation. In response, the state argued that pensions can be modified in times of fiscal emergency. ‘The state of Illinois made a constitutionally protected promise to its employees concerning their pension benefits,’ wrote Judge Belz. ‘Under established and uncontroverted Illinois law, the state of Illinois cannot break this promise. Illinois Attorney General Lisa Madigan [official website] announced [statement] that they “plan to immediately appeal the decision to the Illinois Supreme Court.’
Pension rights have been a controversial issue recently. In December, a judge for the US Bankruptcy Court for the Eastern District of Michigan [official website] ruled [JURIST report] that the city of Detroit is eligible for bankruptcy [JURIST op-ed]. The insolvent city’s debt [JURIST op-ed] includes 3.5 billion dollars in pension funds. The bankruptcy was allowed to go forward despite a Michigan state court ruling [JURIST report] last year which held that the city’s filing for bankruptcy violated the Michigan Constitution. The bankruptcy court held that the pension funds could not be treated any differently than other unsecured debt. In March 2013 the US District Court for the Southern District of New York [official website] denied [JURIST report] a motion to dismiss a lawsuit brought by a pension plan holder against JPMorgan (JPM) [corporate website; JURIST news archive]. The court found that sufficient allegations were raised to support a claim for breaches of both the duty of care and the duty of loyalty.
08 Saturday Nov 2014
Posted 2nd Circuit Court of Appeals, 5th Circuit Court of Appeals, Appellate Law, Appellate Writing, Bad Legal Writing, District of Columbia Circuit Court of Appeals, Editing, Legal Argument, Legal Writing, Legalese, Oregon Supreme Court, Plain Language, Readability, Texas Supreme Court, United States Supreme Court, Wisconsin Supreme Courtin
≈ Comments Off on Collection of Judges’ Best Advice On Legal Writing.
Appellate Brief Writing, Bryan A. Garner, Joseph Kimble, Legal Writing, Legalese, Michigan Bar Association, Plain Language
Judges on Effective Writing: The Importance of Plain Language, by Bryan A. Garner, Vol 84 Mich. B. J. 44 (February 2005)
Each quote here is a pearl of wisdom – classical and timeless. Look no further to find the heart and soul of effective legal writing. Click on the hyperlink to find the footnotes for each quotation. -CCE
08 Saturday Nov 2014
Posted 2nd Circuit Court of Appeals, Appellate Law, Colorado Supreme Court, Evidence, Federal Rules of Evidence, Jury Persuasion, Rule 609, Trial Tips and Techniques, Witnessesin
≈ Comments Off on Witness Credibility When Witness Has A Criminal History.
Credibility Proxies: Violence, by JSK, Evidence ProfBlogger, EvidenceProf Blog
Yesterday [November 7, 2014], we saw the Colorado Supreme Court grappling with whether an act of shoplifting is admissible as evidence bearing on a witness’s credibility. In that same opinion, People v. Segovia, the C.S.C. noted that acts of violence have typically been excluded when offered to impeach credibility.
This frequently cited notion, that acts of violence are not particularly relevant to credibility, is worth interrogating further. To do so, I turn to another opinion from the past decade. This one is a frequently cited opinion by then Judge Sotomayor of the Second Circuit, U.S. v. Estrada, 430 F.3d 606. The case was an appeal of the convictions of two men who were found to have conspired to sell cocaine and heroin. At trial, the government called cooperating witnesses. Defense counsel sought to impeach the two witnesses with evidence that between them they had burglary, larceny, felony drug and murder convictions. Acknowledging that F.R.E. 609(a)(1) suggest that felony convictions are presumptively relevant to credibility, the trial court held in camera hearings to probe into the nature of the larceny, felony drug and murder convictions. It found that they weren’t especially probative of truthfulness. The court therefore ruled that defense counsel could not name the particular felonies committed or ask about the nature of the convictions, but instead could simply elicit the fact of the convictions and the dates.
The Second Circuit disagreed with the blanket prohibition on naming the felonies. It held that unless a conviction fails 403 balancing and is excluded entirely, ‘it is the jury’s function to assess the probative value of a witness’ specific conviction or convictions as part of its overall evaluation of the witness’s credibility.’ Judge Sotomayor wrote that the trial court must examine ‘which of a witness’s crimes have elements relevant to veracity and honesty and which do not’ because while all felonies are not equally probative of credibility ‘many are significantly probative of a witness’ propensity for truthfulness.’
Judge Sotomayor then offered a taste of how the trial court should go about making these determinations. And this is where it gets really interesting. With heavy reliance on earlier authority, she distinguished acts of violence from crimes that “reflect adversely on a person’s integrity.’ Crimes of violence ‘generally have little or no direct bearing on honesty and veracity’ because they result from provocation, carelessness, impatience or combativeness. By contrast, she explained, theft and escape crimes, which don’t fall under 609(a)(2), are nonetheless highly probative of credibility because they involve ‘deliberate and injurious violation of basic standards rather than impulse or anger, and usually . . . some element of deceiving the victim.’ In addition, the gravity and/or depravity involved in the offense should be considered both for their ability to prejudice the jury and because ‘particularly heinous crimes may be high in probative value insofar as they reflect a rejection of social mores.’
Once again, then, rejection of social mores and ‘violation of basic standards” are held up as clear indicators of lack of credibility. Strangely, though, crimes of violence seem to fit those definitions quite well. The very criminalization of such acts suggest that society demands that one maintain self-control and refrain from violence in most circumstances. A violent lack of inhibition or a deliberate indifference to the injuries caused by ones’ actions arguably run contrary to basic standards that glue society together just as fundamentally as the decision to steal from another person.
Even if, instead, lying is linked to the ability to scheme or plan, then this is not much more helpful as a way to distinguish crimes of violence. Certainly, many theft crimes may happen without much thought (shoplifting, for example) and they may be more excusable as the result of thoughtlessness than violence that causes bodily harm to another person. Why is it likely that someone who steals $100 on a whim is more prone to lying than someone who lashes out at another with a beer bottle during a brawl? Why isn’t it equally likely that people who are prone to fly into a violent rage at a perceived slight or recklessly injure others would be careless of the courtroom oath or think nothing of fabricating facts in order to protect themselves? Judge Sotomayor doesn’t answer these questions.
Ironically, even as she offered this fairly detailed explanation of how to weigh felonies under Rule 609(a)(1), Judge Sotomayor illustrated the subjectivity of such line drawing. Coming to the opposite conclusion of the Colorado Supreme Court, she found that it was not error for the district court to conclude that the circumstances of one of the witness’ shoplifting conviction did not ‘involve falsity or deceit such as to fall within the ambit of Rule 609(a)(2).’ Her explanation: stealth and dishonesty are not the same thing.
20 Saturday Sep 2014
Posted Appellate Law, Evidence, Rule 803 Exception, Texas Supreme Courtin
≈ Comments Off on Hearsay Rule Affects Texas State-of-Mind Exception – Or Does It?
Cogdill v. State, Colin Miller, Evidence, Hearsay Rule, Murder Trial, Rule 803, State-of-Mind Exception
Back to the Future: Court of Appeals of Texas Finds State of Mind Exception Inapplicable in Duress Case, by Editor Colin Miller, Evidence ProfBlogger, EvidenceProf Blog
Similar to its federal counterpart, Texas Rule of Evidence 803(3) provides an exception to the rule of hearsay for:
A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
As I always tell my students, Rule 803(3) covers statements concerning present feelings of future intentions but not past events. So where did that leave the defendant in Cogdill v. State, 2014 WL 4627579 (Tex.App.-San Antonio 2014)?
In Cogdill, Nico Allen–Antoni Cogdill was charged with capital murder. At trial, Cogdill raised a duress defense, claiming that he and Isaac Milne killed the victim because Jeremy “Bounce” Bukowski threatened them with a shotgun. To prove this claim, Cogdill sought to have Bukowski’s cellmate testify that:
Mr. Bukowski told me that the night that—that all three of them, they went out to the—to the guy’s house. He said that—that at first he had told Mr. Cogdill and Mr. Isaac Milne that it was just to go out there to rob the guy of some laptops, some computer software, and some musical instruments and stuff. He said whenever they got there he said—he said the guy that they went to rob used to be an old roommate of his and said that he told them that the guy was a convicted pedophilier (sic), and whenever they got out there he pulled a shotgun from his trunk, he held it on Mr. Cogdill and Mr. Milne and forced them to proceed with the—with the murder.
Cogdill claimed that this statement was admissible under Rule 803(3), but the trial court disagreed. On appeal, Cogdill repeated his argument, but the Court of Appeals rejected his claim, concluding:
First, we disagree with Cogdill’s interpretation of Bukowski’s statement. The statements allegedly made by Bukowski are merely a rendition of the events that took place on the night of the murder, i.e., out-of-court statements of events that occurred, and as such are hearsay and not admissible under Rule 803(3). . . . Second, numerous courts have held that for the exception set forth in Rule 803(3) to apply, the statement must relate to future, not past, conduct.
I agree with the court’s conclusion but wonder whether Cogdill also raised Texas Rule of Evidence 803(24), which provides an exception to the rule against hearsay for :
A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant’s position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
The opinion doesn’t reference this Rule, but threatening someone with a shotgun to kill someone would certainly qualify as a statement against interest under the Rule, assuming that there were corroborating circumstances. And, unlike its federal counterpart, Texas’ statement against interest rule does not require that the declatant be unavailable.
24 Thursday Jul 2014
Posted Evidence, Spoilation, Texas Supreme Courtin
≈ Comments Off on Texas 2-Step For Spoilation of Evidence.
Spoilation, Texas Style, by Joshua Gilliand, Bow Tie Blog
The Texas Supreme Court has clarified the standards for spoliation (in Texas). The rule is that Texas has a two-step process: (1) the Trial Court must determine, as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the Court must assess an appropriate remedy. Brookshire Bros., Ltd. v. Aldridge, 2014 Tex. LEXIS 562, 3-4 (Tex. July 3, 2014).
This Allemande Left and Do So Do requires a Trial Court to find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so. Brookshire Bros., Ltd., at *3. This is to be done outside the presence of the jury, so the accused party is not swung around before the jurors, causing any prejudicial effect by the presentation of evidence that is unrelated to the facts underlying the lawsuit. Id. (and memories of 7th grade square dancing). . . .
20 Sunday Jul 2014
Posted Montana Supreme Court, Self-Defensein
≈ Comments Off on Stand Your Ground Law and the Doctrine of Communicated Character.
Colin Miller, Communicated Character, EvidProf Blog, Montana, Reasonable Apprehension, Self-Defense, Stand Your Ground Law
Defendant Has To Testify To Support Self-Defense Claim, Despite Stand Your Ground, by Colin Miller, Editor, EvidProf Blog
I’ve written a few posts about the doctrine of ‘communicated character,’ which allows a defendant to present evidence of the alleged victim’s prior violent acts, not to prove the victim’s violent tendencies, but instead to prove the defendant’s reasonable apprehension. Of course, what this means is that a defendant must have knowledge of the victim’s violent past to present such character evidence. So, can a defendant prove that knowledge without himself testifying at trial? And how might a Stand Your Ground law change matters? Let’s take a look at the recent opinion of the Supreme Court of Montana in State v. Montana Ninth Judicial District Court, 2014 WL 3430350 (Mont. 2014). . . .
08 Tuesday Jul 2014
Posted Damages, Litigation, Pennsylvania Superior Court, Summary judgmentin
≈ Comments Off on Casino Valet Service Not Liable For Returning Car To Intoxicated Driver.
Bailment, Daniel E. Cummins, Dram Shop, First Impression, Intoxicated Driver, Summary judgment, TORT TALK Blog, Valet Service
No Liability for Valet Service for Returning Car to Visibly Intoxicated Patron, by Daniel E. Cummins, TORT TALK
In its recent decision in the case of Moranko v. Downs Racing LP, 2014 Pa.Super. 128 (Pa. Super. June 24, 2014 Panella, J., Mundy, J., and Platt, J.)(Op. by Panella, J.), the Pennsylvania Superior Court held that Pennsylvania law does not impose a duty upon a casino’s valet service to withhold the keys from a motorist if that person appears to be visibly intoxicated. . . .
06 Sunday Jul 2014
Posted Appellate Law, California Supreme Courtin
≈ Comments Off on New and Amended California Court Rules and Local Rules.
California Courts, The Judicial Branch of California, New & Amended Court Rules
California County Court Local Rules effective July 1, 2014:
Alameda County, Butte County, Calaveras County, Contra Costa County, El Dorado County, Fresno County, Humboldt County, Imperial County, Kern County, Kings County, Lake County, Lassen County, Los Angeles County, Madera County, Marin County, Merced County, Monterey County, Napa County, Nevada County, Orange County, Placer County, Riverside County, Sacramento County, San Bernardino County, San Diego County, San Francisco County, San Joaquin County, San Luis Obispo County, San Mateo County, Santa Barbara County, Santa Clara County, Santa Cruz County, Shasta County, Siskiyou County, Solano County, Sonoma County, Stanislaus County, Tulare County. Tuolumne County, Ventura County, and Yuba County. -CCE
04 Friday Jul 2014
Posted 7th Circuit Court of Appeals, Appellate Law, Illinois Supreme Courtin
≈ Comments Off on Web Resources for Illinois Appellate Lawyers.
Appellate Law, Appellate Lawyer Association, Appellate Resources, CLE, Illinois Supreme Court, U.S. Court of Appeals for the Seventh Circuit
[Illinois] Appellate Lawyer Association Web Resources
This section includes valuable lists of links to:
Illinois references, such as a List of Courts in the State, Local Bar Associations and Law Schools
Law-Related Directories and Portals
A Roster of Research Sites
Providers of CLE Courses
Legal Employment Resources
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