Tennessee Business Litigation Law Blog

A recent opinion from the Tennessee Court of Appeals highlights the burden that lies with a defendant who is attempting to prove mitigation of damages.  In ABC Painting Co. v. White Oaks Apartments, the plaintiff brought suit for defendant’s failure to pay over $21,000.00 in invoices for painting work done at defendant’s apartment units.  The defendant counterclaimed that the plaintiff had not done the painting in a “workmanlike manner” as required by the parties’ contract.

At a bench trial, the plaintiff produced invoices for completed work, each of which was signed by the defendant, documenting the full amount of damages sought.  Further, plaintiff introduced testimony that the defendant had never complained about substandard work and plaintiff had promptly done any touch-up work requested.

In response, the defendant offered testimony that, according to their estimation, approximately 75% of the apartment units were painted in a substandard manner.  However, defendants failed to keep any documentary evidence to back up this allegation.  Additionally, while the defendant claimed that another painter had been hired to fix the substandard paint jobs, the invoices submitted from this second painter predated any of the work done by the plaintiff.  This second painter did testify that a number of the apartments were painted in a substandard manner, but he could not specify which apartments these were or document how much money he had been paid to correct the plaintiff’s work.

The trial court awarded the plaintiff $13,500.00 for the unpaid work, as well as a portion of their attorney’s fees pursuant to the terms of the contract.  On appeal, this decision was reversed and the plaintiff was awarded the full amount of their damages.  The Court of Appeals noted: 

Although the party seeking damages has the burden of proving those damages, the burden is on the defendants who breached the contract to prove what amounts should be offset in mitigation of damages. And “[w]hile there is no mathematical formula for calculating damages, the proof of damages must be as certain as the nature of the case permits and must enable the trier of fact to make a fair and reasonable assessment of the claimed damages.” (citations omitted)

Based on the foregoing, the court found that the defendant’s proof of mitigation was speculative and unsubstantiated by a preponderance of the evidence and awarded the full value of the plaintiff’s damages.

Read the entire opinion here.

On Thursday of this week I am speaking for the Nashville Bar Association on the topic of "What You Should Ask Yourself When Working With an Expert Witness." The CLE is focused a number of concerns that civil litigators should consider in choosing what experts to work with and how to do so.

Next month, on December 20 and 21, Branham & Day is presenting our fifth annual Fundamentals of Civil Litigation seminar at the Nashville School of Law. The seminar is geared to providing practical tips to new lawyers throughout the civil lawsuit process - from opening the case, through discovery, and into trial. For more information or to sign up, see our website at www.branhamday.com.

The recent case of In re Estate of Drewry E. Haskins, Jr. from the Eastern Section of the Court of Appeals deals with the requirements for a verbal contract under Tennessee law, but the interesting part of the case focuses on the credibility of witnesses. In Haskins, the case was tried before a special master in 1999, with the special master finding the plaintiff failed to prove the existence of an oral contract.  More than four years later, and after being instructed to do so by the Chancellor, the special master amended his report to consider the testimony of several additional witnesses. The master found the testimony of each of these witnesses “not to be credible in this action as a result of her affect and her interest," and again found no oral contract existed. 

The plaintiff appealled, arguing that “the Special Master made a determination of credibility of multiple witnesses...fifty-six months after hearing."  The plaintiff further argued that "no finder of fact can make any appropriate finding of credibility more than four and one-half years after the hearing in
question.” The Court of Appeals rejected the plaintiff's argument outright, noting that credibility is determined during the trial even if recorded in an order or report years later.  Moreover, even with the passage of time the trial court remains better equipped to judge the credibility of witnesses than an appellate court reviewing the transcript alone.

One final important point made by the Court of Appeals is that a trial court need not accept as true a witness's testimony merely because it is not directly contradicted, impeached, or discredited. In other words, a witness's testimony that the sky is yellow and the sun is blue need not be accepted as fact merely because it is not attacked on cross-examination. 

John Day posted on Day on Torts this morning about the admissibility of computerized records at trial. According to this law.com article mentioned in the post, a new 9th Circuit Bankruptcy Appellate Panel opinion ups the ante for the testimony required to authenticate and admit computer records. Specifically, the 9th Circuit's decision in In re: Vinhnee, 2005 WL 3609376 (B.A.P. 9th Cir. Dec. 16, 2005) would appear to require more than the traditional proof that the records are kept contemporaneously in the ordinary course of business. Instead, the courts appear to be moving toward requiring competent foundational testimony regarding how the computer hardware and software maintains the data.

Evan Shaeffer passes along a tip for litigators: start a memo early in a lawsuit and keep track of evidentiary issues as they arise. Although you will still end up poring over the entire file during final trial preparation, at least you can focus on presenting evidence. Evan specifically mentions a list of motions in limine to exclude evidence, but I'd take it a step further and keep a running tally of briefs you will need to draft in favor of evidence as well. If you've got evidence of post-incident changes, for example, you might as well plan on a bench brief to explain why it is not a subsequent remedial measure or why it is admissible notwithstanding Rule 407.

After a long trial, the last thing you want to do is wade back through a transcript to find potential errors that would justify an appeal (or hopefully a cross-appeal instead). To avoid this drudgery (or at least alleviate it), keep a running list of potentially appealable errors during the trial. Before the trial starts, make a chart with the following three columns: (1) date and time, (2) what was happening (i.e., the witness on the stand, during argument over jury instructions, etc.), and (3) the nature of the error. If that judicial error turns out to change the result of the trial, you will be able to find it and its context faster when the transcript does arrive.

With more than 40% of the national jury pool made up of young "Generation X" and "Generation Y" jurors, the use of technology in the courtroom is quickly becoming a necessity. Following up on my earlier post about using Powerpoint for fun and profit in the first Vioxx case, there is a terrific post at Presentation Zen on good Powerpoint design. The author of the site is an Associate Professor of Marketing and Multimedia Presentation Design in Japan. The post is worth checking out, especially for the specific examples of how to better use Powerpoint to communicate your points in a presentation (or oral argument, or closing argument).

We commonly use Powerpoint in our firm for mediation, oral argument, and trial presentations. I've written it before here, and I'll write it again now: a Powerpoint presentation is much less effective if it is just a bulletpoint version of your speech. I always try to think of what background graphic would be used by a newsmagazine like Dateline NBC, 20/20, or (God and Judge willing) the Daily Show. It's not going to be a simple three line bulletpoint list (by the way, social science says no more than 3-5 lines on a slide if you are going to make a bullet list). Instead, it's going to be something that adds to the speaker's own message.

This article from the LA Times goes over Mark Lanier's much applauded use of Powerpoint in the first Vioxx wrongful death case. (Although Vioxx is a bit off topic for here, you can read much about the Vioxx cases at John Day's Day on Torts blog.) (Thanks to the Legal Reader for the link.)

John Day posted this morning on Day on Torts about a new opinion on recovering discretionary costs from the Court of Appeals, Carpenter v. Klepper. In Carpenter, the Court spent a full five pages discussing recovering discretionary costs under Rule 54.04(2). The Court goes into detail as to the burden of proving discretionary costs at trial and the standard of review on appeal, and analyzes which of the costs requested by two different parties could be properly awarded. Whether you are the prevailing party or just trying to stop the bleeding on the losing end, take a look to Carpenter before filing your brief.

Use available technology at trial and in oral argument. This article over at Law.com similarly directs you to "Make the Most of Courtroom Technology", but I would go further even than the article suggests. Using video depositions is a starting point; Branham & Day has videotaped the majority of the depositions we take since before I started three years ago. We have impeached a defendant using the courtroom's video feed of his trial testimony. We have used presentation software to give the court a side-by-side comparison demonstrating that two documents were substantively identical. Although it may not make sense (from an economic or strategic standpoint) to use high-tech tools in every case, they provide a tremendous resource for a litigator worth considering.

Evan Schaeffer posts on his Illinois Trial Practice blog a couple of tips for establishing the authenticity of documents before trial using admissions. If you are going to try authenticating evidence through stipulations or admissions, though, consider breaking down each step in the foundation of the evidence. For example, a business record may still contain other hearsay in it, such as a note that the customer wanted to buy the product. The parties may agree to the authenticity of the business record, but not its admissibility because of the hearsay statement by the customer. If you ask your opponent to stipulate or admit to each step in the foundation, though, you can at least narrow down what issues will need to be addressed at trial.

Preparing for trial is, by nature, hectic. If you are not wired enough to power the Titans' Coliseum on a night game, you are not paying enough attention. It's helpful to have a checklist to see if all of the applicable basics are covered.
This trial preparation checklist is set out in phases - sixty days before trial, thirty days out, at the pre-trial conference, and in the final days before trial. The courtroom is a much friendlier place when you thoroughly prepare yourself. Download file.

The checklist is not carved in stone. It is not a "must do" list. Rather, it is simply a list of the matters that you may want to consider in the course of your trial prepartion. It's always better to choose not to do something than to forget to do it.

There's a post on our Medical Malpractice Blog (medmalblog.com) today with several Tennessee cases on limits to using computer generated videos in trials. If a picture is worth a thousand words, a running video is worth exponentially more. They're also pricy to create, so it's a good idea to consider these issues before spending the money on a video that would be persuasive, but is nonetheless inadmissible.

This article discusses the gradual death of the "Goliath effect" - or worrying that using computers in the courtroom will make you appear more wealthy rather than more persuasive. This is a dead issue, at least in the realm of technology. Given that more than 60% of Americans use the Internet, thoughtful use of technology is not going to alienate jurors. It's now in the lawyer's hands to use videoclips to remind jurors of important testimony, to zoom in and highlight critical sentences from 300 page documents, and to convert painfully dry statistics into charts and graphs that effectively communicate to the jury. These are important tools in the document-intensive world of commercial litigation.

Here's a good tip from Evan Schaeffer: if you are preparing for trial in a court that allows pre-marking of exhibits, then number your documents based on importance. In other words, mark the document that you want the jury to concentrate on most as number 1, and work your way down from there. Combine this technique with a pre-packaged exhibit notebook (or CD-Rom under the right circumstances) for the jury to try and keep their attention focused during deliberations.

Digital cameras are now the norm, but occassionally questions come up regarding the admissibility of digital photos as evidence in a lawsuit. The short version is that a digital photo is admissible under the same rules as any other photograph, videotape, or drawing - if a witness with knowledge confirms that it fairly and accurately represents what it is being introduced to prove. Also as with a regular photo or video, if it has been generated automatically (such as by a surveillance camera), then a person with knowledge needs to testify about the manner in which the camera was set up.

Any other issues should go to the weight, not the admissibility, of a digital photo as evidence. For a list of some of those issues, take a look at this article. For example, they mention the compression ratio used on the camera (reduces image quality and can leave out important details), the "chain of custody" of persons and machines that the photos have been passed through en route to trial, and any changes such as contrast settings to sharpen the image that might actually distort it. The authors discuss these issues in the realm of admissibility, but again, they really should be factors for the jury to consider in weighing the evidence. One fundamental piece of advice from the article: if you touch up the photo for clarity reasons, make sure to preserve the original so the jury can compare and confirm that the changes are incidental.

According to a Reuters article, prosecutors are finding it tough to prove white collar crimes because jurors expect the kind of forensic evidence the see on TV shows like CSI. This kind of bias is going to pester you in any business litigation these days. Another reminder to make sure the evidence not only satisfies your burden and gives you something to talk about in closing, but is interesting on its own.

Video cameras in the courtroom are a growing trend here in Tennessee. I am referring not to TV crews, but closed circuit cameras recording an entire trial. The Davidson County Circuit courtrooms have cameras set up to record witness testimony, even in the courts' temporary Metro Center home. At the end of each day in the trial, lawyers can purchase CD-roms of the videos.

An article over at Law.com looks at lawyers using trial video during closing argument. This is hard work. Any attorney who has worked closely with clipping a videotaped deposition knows how time-consuming it is. Now magnify by the stress of a lengthy trial, and fit it in your schedule to pick out clips during your "free hours" in the middle of trial. You also need a great deal of pre-trial planning, in terms of having staff available to get the videos loaded onto your computer, clipped, reviewed by a knowledgeable attorney, and ready to play back at trial. The result, though, can be extremely worthwhile.

We have used trial video of witnesses in cases, and been very happy with the results. Just like a videotaped deposition versus reading a transcript, a picture is worth a thousand words.

From our Medical Malpractice Blog:

Under the Bearman Rule of Tenn. R. Civ. P. 32.01(3), a discovery deposition of an expert witness cannot be used at trial except to impeach the same witness at trial.

Say the defendant discloses 3 expert witnesses on the same topic. Each expert is deposed, and the 3 witnesses do not agree on critical subjects in the case. They read each other's deposition testimony. When it's time for trial, lo and behold, the defendant only wants to use the best witness.

Can you ask the testifying expert witness about the opinions of the withdrawn experts? According to Steele v. Ft. Sanders Anesthesia Group, P.C., 897 S.W.2d 270 (Tenn.App., 1994), you can. The trial judge should give a limiting instruction on the difference between impeachment and substantive evidence, but other than that, it is generally an appropriate subject of impeachment.

One sentence from the Court of Appeals that is vital to being able to adequately cross an expert:

We are of the opinion that full cross-examination of an expert can not and should not be curtailed simply by having the expert deny that he relied on any materials he reviewed and considered with which he disagrees.

Powerpoint presentations are easy to prepare. There's a fine line between an effective Powerpoint and a distracting one, though. While you're actually drafting a Powerpoint, it's s easy to get distracted into thinking that it is the presentation, but that's not the case. It's a visual aid, and should not have any more than you would want to have blown up on a board on an easel. I try to think of what would be effective on a newsmagazine style TV show, like Dateline NBC or 20/20. The background graphics don't replace the reporter. They just amplify the message and make it a little more interesting. The reoprter - or the lawyer - is still the key to the presentation. Here's a link to a Powerpoint presentation about creating more effective Powerpoint presentations. It's a decent little summary of some of the issues you should consider before getting started on a presentation.

Apparently, a juror brought a dictionary into deliberations to read the definition of "preponderance" to all of the jurors. The judge found out, threw out the verdict and called for a retrial.

I really want to know if the lawyers - especially on the plaintiff's side - explained what "preponderance of the evidence" means. It's an awkward phrase, and it needs to be broken down into simple English. If you're on the plaintiff's side, you really need the jury to understand that all it means is "more likely than not." Otherwise, there's no telling what your average person would make of the archaic phrase "preponderance of the evidence." In the dictionary case, did the jury never hear an explanation, or did they just want to do their own research?

Using technology at trial is a double-edged sword. It manages to simplify and complicate things at the same time. Computers can find many ways to break themselves, and usually wait until the most inopportune time (like 2 minutes before opening statement) to do so. Preparation for contingencies is about the only way to use technology effectively at trial without being hostage to it.

With that in mind, Law.com has an article with five tips for preparing to use technology at trial. The article has some great advice and quick practical bits to consider, such as whether the hotel you are staying in during trial has adequate internet connections. But lawyers need to be more proactive than the article suggests. It's not up to the paralegals and staff to determine the best way to present a case. The lawyer needs to know what technology is available, and keep that in mind in planning demonstrative exhibits, impeachment tools, and evidence management systems.

For some concise pointers on handling voir dire, look to this post at the National Institute of Trial Advocacy. This is some great advice for lawyers preparing for a jury trial of an type.

Technology is expensive. Litigation technology is expensive. But this article helps us remember that not using technology can be expensive, too.

The preperation and trial of a commercial case always involves paper. Lots of paper. And, many times, the trial of such a case involves lots of facts. The ability to put your hands on these facts and papers in a timely fashion can mean the difference between winning and losing. Or the difference between winning and winning big.

We have summarized depositions electronically and managed documents electronically for over a decade. We first used Powerpoint in trial for over five years. We used digital video clips to impeach at trial over three years ago. These efforts cost a little money on the front-end. When used appropriately, however, they are worth their weight in gold.