978-1285860381 Chapter 6 Solution Manual Part 2

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Trial

Adversary System

Our system of justice assumes that the best way to bring out the truth is for both sides to “go at” the

various witnesses, enabling a neutral factfinder (judge or jury) to detect the truth. A full demonstration

of examination and cross-examination in the classroom may take up too much class time. The

following exercise permits an interesting glimpse at one vital part of the process.

Role Play: Who Is Telling the Truth?

Have a dozen students (the jury) leave the room. Then ask two students to read this dialogue:

Jack: So, Kate, I understand you’re thinking of hiring a computer consultant for your travel business?

Kate: Yeah, we probably need somebody. It’s beyond us. We want someone to come in, give some

advice on systems, software, all that stuff.

Jack: I did a project two months ago for another travel agency. Just about your size. They love it.

Kate: Really?

Jack: Here’s what I can do. I’ll come in, interview everybody, figure out what you need, recommend

the hardware, set it up, install all software, and teach you how to use it. Flat fee: $20,000.

Kate: Sounds good, but it’s too high for us. We couldn’t go higher than $15,000.

Jack: I’ll tell you what: $17,500.

Kate: I like it. I think we might do it. I’ll call you for sure tomorrow.

Jack has now sued Kate, claiming that they had a deal for $17,500. Kate claims she never agreed to

hire him. Prepare six students to “testify” to the jury (without any lawyers). They will simply make

ad-libbed statements, but some will be lies. Jack will start by explaining the conversation; he will

accurately describe the beginning but will conclude with a lie, saying that they made a firm deal for

$17,500. Kate will accurately relate the conversation, and mention that the following day she decided

not to hire Jack. Then four other students will briefly speak, two on behalf of Jack, and two on behalf

of Kate. The two who speak for Jack will be supporting his claim that the parties had a firm deal. The

two speaking for Kate will tell the truth, accurately describing what Kate and Jack said. Permit

everyone a few minutes to prepare his or her statements. Then ask the “jury” to return, and hear the

“evidence.” See if they can tell who is speaking the truth.

Voir Dire

If students completed the Voir Dire research assignment, now would be a good time to discuss their

conclusions as to whom they would want on a jury and why.

Question: When impaneling a jury, lawyer cannot take race, gender, ethnicity, and religion into

account. What are some characteristics, other than race, gender, ethnicity, and religion, which

might be important when impaneling a jury for the examples given?

Answer: Some possible answers: O.J. Simpson: whether potential jurors are football fans;

whether any are graduates of U.S.C.; whether any potential jurors are themselves, or know

During voir dire, the court’s goal is to select an impartial panel; each lawyer, by contrast, is striving to

obtain the most favorable jury possible.

Question: Is it good to allow lawyers to challenge jurors?

Answer: The theory behind voir dire is that it will result in an unbiased jury and the fairest

Question: What is the important difference between challenges for cause and peremptory

challenges?

Answer: A challenge for cause is based on bias. A judge will allow a challenge for cause only

Question: The British developed the jury, and voir dire, but over the past several decades they

have nearly eliminated both. In Britain, there are no juries in any civil case except one of libel or

police misconduct. In over 90 percent of criminal trials, there are also no juries. In the few cases

that do include a jury, voir dire is extremely brief. A judge will typically ask potential jurors if they

know or are related to either party, or perhaps if they own stock in a company that is involved.

There are no other questions from the bench and none at all from the lawyers. In most cases, this

results in the first 12 people being seated as jurors. Is this better or worse than the American

system?

Answer: It is certainly faster. In complex American trials, it may take several days to impanel a

jury; in Britain, it usually takes minutes. Those who favor the British approach also regard it as

fairer. They say that the American system unfairly benefits those with enough money to research

Case: Pereda v. Parajon1

Facts: Maria Parajon sued Diana Pereda for injuring her in a car accident. During voir dire, Parajon’s

lawyer asked potential jurors: “Is there anybody sitting on this panel now that has ever been under the

care of a physician for personal injuries, whether you had a lawsuit or not? In other words, you may

not have had any sort of lawsuit, but you slipped and fell- you had any accidents?”

Several prospective jurors raised their hands; however, Lisa Berg, a lawyer, did not. Berg and

others were seated as jurors and awarded Parajon $450,000 for medical damages and pain and

suffering.

After the trial, during questioning by the judge, Berg admitted that she had been injured in a car

accident, sued, and settled out of court for $4,000.

Parajon moved for a new trial but was denied. Parajon appealed.

Issue: Is Parajon entitled to a new trial based on Berg’s failure to disclose her own personal injury

lawsuit?

Holding: Yes. According to the court, a juror’s nondisclosure warrants a new trial if (1) the

information is relevant and material to jury service in the case; (2) the juror concealed the information

during questioning; and (3) the failure to disclose the information was not attributable to the

complaining party’s lack of diligence.

Both party’s lawyers may have been influenced to challenge Berg as a juror had they known about

her personal injury history. Her involvement in the matter may have influenced her point of view as a

juror in this case. Her failure to disclose her personal injury history precluded both counsels from

examining her further on this point.

Berg is a lawyer. It is clear that she concealed this information despite Parajon’s lawyer’s diligent

inquiry.

Question: If Parajon won the trial and was awarded $450,000 why would she move for a new trial?

Answer: In this case, Parajon was sitting on a bench at a bus stop when Pereda, who was driving a

1 957 So.2d 1194, Florida Court of Appeals, 2007.

Question: Does that mean because one juror did not answer a question truthfully, both parties have to

pay to try the case again?

Question: Is there anything the parties can do to the juror? Can they sue her for lying during voir

dire?

Answer: The parties cannot sue Berg for lying during voir dire. But, potential jurors are under oath

Appeals

Additional Case: Hernandez v Montville Township Board of

Education2

Facts: Victor Hernandez had worked for more than 20 years as a custodian at a public power plant and

had received training in health and safety rules from the Occupational Safety and Health

Administration (OSHA). He took a second job as night custodian at an elementary school. Shortly

after he started work, the school board fired him for alleged poor job performance. Hernandez sued,

claiming that the board fired him in retaliation for reporting health and safety code violations. The jury

awarded Hernandez damages for lost wages and emotional distress but the trial judge granted judgment

notwithstanding the verdict (JNOV). The trial judge stated:

“Talk about trivial. By the time the jury went out, I should have concluded that the plaintiff simply

had not made out a case, under the CEPA law, because he never disclosed or threatened to disclose

to his supervisor an activity, policy, practice of an employer that the employee reasonably believed

was in violation of law or a rule. There simply was none. In addition to that, there isn’t any other

evidence adduced by anyone in the case that these things that he’s complaining about ever

occurred. I didn’t believe anything [plaintiff] said. [This is] trivialization beyond belief.”

Hernandez appealed.

Issue: Did the trial court err by rejecting punitive damages, or by granting the JNOV?

Holding: Judgment NOV reversed and jury’s verdict on compensatory damages reinstated. Plaintiff

knew there were regulations and policies against exposing schoolchildren to urine and feces and

against unlit exit signs, particularly in an elementary school setting. Contrary to the court’s finding in

granting JNOV, it is irrelevant to plaintiff’s CEPA claim whether there was independent corroboration

of the overflowing toilets. Under the JNOV standard the court must accept as true plaintiff’s

testimony, which the jury clearly found credible.

There was ample evidence in the record for the jury to conclude defendant’s proffered reason for

termination was a pretext and that the whistleblowing itself was a substantial factor in the termination.

It was error for the court to substitute its judgment for that of the jury and reverse the jury verdict.

There was sufficient evidence to submit the punitive damage claim to the jury. Based upon the

compensatory damage verdict, it appears that the jury agreed.

Question: What did the jury think about Hernandez’s claim?

Question: Then why did the trial judge conclude that Hernandez was entitled to nothing?

Answer: The trial judge thought there was no substance to Hernandez’s claim because he

Question: Why does a trial judge have the power to ignore a jury’s decision?

2 354 N.J.Super.467, 808 A.2d 128, Superior Court of New Jersey, Appellate Division, 2002

Answer: The rules of civil procedure give a trial judge to enter a judgment NOV, or a judgment

Question: Did the jury’s verdict in this case fail to rest on the evidence?

Question: What is that standard?

Answer: In considering the judgment NOV the trial judge should have accepted Hernandez’s

Question: Isn’t this appeals court substituting its own judgment for that of the trial judge?

Answer: No. The appellate court is insisting that the jury’s verdict be reinstated. A trial court

Alternative Dispute Resolution

Types of ADR

Negotiation – the parties discuss the issues directly or through lawyers; the parties remain in control

of the outcome.

Mediation – a neutral third party guides the disputing parties toward a voluntary settlement. The use

of mediation may be court-ordered or voluntary.

Arbitration – a neutral third party guides the disputing parties to discuss their cases, then renders a

decision which is binding on both parties. The use of arbitration may be court-ordered or voluntary.

Example: Mandatory Arbitration

This exercise examines the risks and benefits of mandatory alternative dispute resolution (ADR) in an

employment contract for a hypothetical company, FacTree. Students should consider these facts and

discuss the benefits and risks for the company and for employees.

FacTree manufactures artificial trees and flowers. There are about 100 workers who do the routine

as-sembly work for pay ranging from $8 per hour to $15 per hour. They work in two shifts. There are

about a dozen supervisors who oversee their work. In the past few years there have been five

employment lawsuits: three concerned sexual harassment and two concerned discrimination in

promotion. All five settled before trial. For three of the suits the company’s attorney fees were over

$50,000 per suit. For one of the claims, the company paid $250,000 in damages to the employee. The

company is considering mandatory ADR for all employment disputes. What are the benefits for each

side?

From the Company’s Perspective:

Quicker decisions. Managers will spend less time in discovery and trial preparation.

Employees may have less ability to sustain vexatious litigation (though they may be able to file

such claims even more easily).

Reduced attorney fees.

Reduced discovery. Unhappy employees will be allowed to see very few company documents

concerning internal investigations of supervisors; other related claims of harassment or

discrimination; employment statistics concerning gender, race, age, etc., and intra-company

memoranda.

No class actions. The stakes may rise dramatically in a class action because the defendant

faces with much greater exposure. This in turn may give the plaintiff class greater bargaining

leverage.

From the Employees’ Perspective:

Reduced cost of bringing claims. In a lawsuit, the plaintiff must first convince an attorney to

accept the case on a contingent-fee basis, or else pay a large hourly rate. With ADR, the

employee can either perform the work herself, or hire a lawyer whose hours will be greatly

reduced.

Quicker decisions. A lawsuit may drag on for several years, including discovery, trial, and

appeal. Before the decision is final, the employee may abandon the case and the job. With

ADR, management will have less opportunity to “club” an employee into settlement by

dragging out a lawsuit.

Amicable settlement. ADR may increase the chance of an informal, amicable decision. The

parties may stop thinking in terms of “win-lose,” and strive for a rational compromise.

Less bargaining power. The inability to bring class actions, engage in pre-trial discovery, or

obtain orders enforceable by a court decreases the ability of employees to change the

employment relationship.

Multiple Choice Questions

1. The burden of proof in a civil trial is to prove a case ___. The burden of proof rests with the ___.

(a) beyond a reasonable doubt; plaintiff

(b) by a preponderance of the evidence; plaintiff

(d) by a preponderance of the evidence; defendant

2. Alice is suing Betty. After the discovery process, Alice believes that no relevant facts are in

dispute, and that there is no need for a trial. She should move for a ___.

(a) judgment on the pleadings

(b) directed verdict

(d) JNOV

3. Glen lives in Illinois. He applies for a job with an Missouri company, and he is told, amazingly, that

the job is only open to a white applicant. He will now sue the Missouri company under the Civil

Rights Act, a federal statute. Can Glen sue in federal court?

(a) Yes, absolutely

(b) Yes, but only if he seeks damages of at least $75,000. Otherwise, he must sue in a state court.

(d) No, absolutely not. He must sue in a state court.

4. A default judgment can be entered if which of the following is true?

(a) A plaintiff presents her evidence at trial and clearly fails to meet her burden of proof

(b) A defendant loses a lawsuit and does not pay a judgment within 180 days.

(d) A citizen fails to obey an order to appear for jury duty

5. Barry and Carl are next door neighbors. Barry’s dog digs under Carl’s fence and does $500 damage

to Carl’s garden. Barry refuses to pay for the damage, claiming that Carl’s cats “have been digging

up my yard for years.”

The two argue repeatedly, and the relationship turns frosty. Of the following choices, which has no

outside decision maker and is most likely to allow the neighbors to peacefully coexist after

working out the dispute?

(a) Trial

(b) Arbitration

Case Questions

1. You plan to open a store in Chicago, specializing in rugs imported from Turkey. You will work

with a native Turk who will purchase and ship the rugs to your store. You are wise enough to insist

on a contract establishing the rights and obligations of both parties and would prefer an ADR

clause. But you do not want a clause that will alienate your overseas partner. What kind of ADR

clause should you include, and why?

Answer: Yes. Try blending ADR mechanisms. Have the ADR clause state that in the event of a

dispute, the parties will negotiate it in good faith, and take no further steps for 30 days. If

negotiation fails, an additional 30-day cooling-off period follows. The next step could be a

2. Which court(s) have jurisdiction as to each of these lawsuits—state or federal? Explain your

reasoning with each.

(a) Pat wants to sue his next-door neighbor, Dorothy, claiming that Dorothy promised to sell him

the house next door.

(b) Paula, who lives in New York City, wants to sue Dizzy Movie Theatres, whose principal place

of business is Dallas. She claims that while she was in Texas on holiday, she was injured by

their negligent maintenance of a stairway. She claims damages of $30,000.

to sell him 3,000 acres of farmland in Ohio, worth more than $2 million.

(d) Pete, incarcerated in a federal prison in Kansas, wants to sue the United States government.

He claims that his treatment by prison authorities violates three federal statutes.

Answer:

(b) The general trial court of Texas, only. There is no federal court diversity jurisdiction

(d) United States District Court has federal question jurisdiction, based on the federal statutes

3. British discovery practice differs from that in the United States. Most discovery in Britain

concerns documents. The lawyers for the two sides, called solicitors, must deliver to the opposing

side a list of all relevant documents in their possession. Each side may then request to look at and

copy those it wishes. Depositions are rare. What advantages and disadvantages are there to the

British practice?

Answer: Discovery is more efficient in Britain, since the solicitors are honor-bound to notify of

4. Trial practice also is dramatically different in Britain. The parties’ solicitors do not go into court.

Courtroom work is done by different lawyers, called barristers. The barristers have very limited

rights to interview witnesses before trial. They know the substance of what each witness intends

to say but do not rehearse questions and answers, as in the United States. Which approach do you

consider more effective? More ethical? What is the purpose of a trial? Of pre-trial preparation?

Answer: The purpose of a trial is to learn the facts, and apply the law to them. Because the

Anglo-American trial system is adversarial, both sides certainly need some opportunity to prepare.

However, at some point, trial preparation may turn into the scripting and rehearsal of a “show,”

designed to manipulate the factfinder. In the American system, the greatest danger is that the trial

5. Claus Scherer worked for Rockwell International and was paid more than $300,000 per year.

Rockwell fired Scherer for alleged sexual harassment of several workers, including his secretary,

Terry Pendy. Scherer sued in United States District Court, alleging that Rockwell’s real motive in

firing him was his high salary.

Rockwell moved for summary judgment, offering deposition transcripts of various employees.

Pendy’s deposition detailed instances of harassment, including comments about her body, instances

of unwelcome touching, and discussions of extramarital affairs. Another deposition, from a

Rockwell employee who investigated the allegations, included complaints by other employees as to

Scherer’s harassment. In his own deposition, which he offered to oppose summary judgment,

Scherer testified that he could not recall the incidents alleged by Pendy and others. He denied

generally that he had sexually harassed anyone. The district court granted summary judgment for

Rockwell. Was its ruling correct?

Answer: Yes. The court of appeals affirmed. Scherer v. Rockwell International Corp., 975 F.2d

356, 1992 U.S. App. LEXIS 22080 (7th Cir. 1992). “When questioned about the specific instances

of sexual harassment, he did not deny that the incidents occurred, but instead stated that he could

Discussion Questions

1. In the Tony Caruso case described throughout this chapter, the defendant offers to settle the case as

several stages. Knowing what you do now about litigation, would you have accepted any of the

offers? If so, which ones? If not, why not?

2. The burden of proof in civil cases is fairly low. A plaintiff wins a lawsuit if he is 51% convincing,

and then he collects 100% of his damages. Is this result reasonable? Should a plaintiff in a civil

case be required to prove his case beyond a reasonable doubt? Or, if a plaintiff is only 51%

convincing, should he get only 51% of his damages?

3. Large numbers of employees have signed mandatory arbitration agreements in employment

contracts. Courts usually uphold these clauses. Imagine that you signed a contract with an

arbitration agreement, that the company later mistreated you, and that you could not sue in court.

Would you be upset? Or would you be relieved to go through the faster and cheaper process of

arbitration?

4. Imagine a state law that allows for residents to sue “spammers”—those who send uninvited

commercial messages through email—for $30. One particularly prolific spammer sends messages

to hundreds of thousands of people.

John Smith, a lawyer, signs up 100,000 people to participate in a class action lawsuit. According to

the agreements with his many clients, Smith will keep 1/3 of any winnings. In the end, Smith wins

a $3,000,000 verdict and pockets $1,000,000. Each individual plaintiff receives a check for $20.

Is this a lawsuit reasonable use of the court’s resources? Why or why not?

5. Higher courts are reluctant to review a lower court’s factual findings. Should this be so? Would

appeals be more fair if appellate courts reviewed everything?