Stetson Journal of Advocacy and the Law http://www2.stetson.edu/advocacy-journal The first online law review designed to be read online Tue, 14 Oct 2014 13:56:33 +0000 en-US hourly 1 Foreword http://www2.stetson.edu/advocacy-journal/foreword/ http://www2.stetson.edu/advocacy-journal/foreword/#comments Wed, 08 Jan 2014 02:24:42 +0000 http://www2.stetson.edu/advocacy-journal/?p=277

Charles H. Rose III1 1 Professor of Excellence in Trial Advocacy; Director, Center for Excellence in Advocacy.

1 Stetson J. Advoc. & L. 1 (2014)
When Dr. Timothy Kaye and Professor Catherine Bohl asked that I write the foreword to the first edition of the Stetson Journal of Advocacy and the Law I was honored, but somewhat apprehensive at putting pen to paper in furtherance of Stetson’s legacy in what is currently recognized as the forefront of legal education — teaching law students how to not only understand the law, but to apply it in the service of a client.
This Journal captures the unique strengths of a partnership between former practitioners, current academics, students, and future practitioners of the law, one of the hallmarks of the Stetson education experience. The result is a series of articles that are both interesting and applicable — a rarity in the world of academic legal journals.
Stetson University College of Law, the first law school in the state of Florida, has been committed to teaching both the theory and practice of law since its inception. When the first classes were held and lawyers made, trial advocacy was included in the courses taught. From that day to this the law school has consistently stood for the proposition that theory and practice are two sides of the same coin — a complete legal education.
This Journal is one more step in a legal education journey committed to a type of legal education creating not only legal scholars, but practicing lawyers. As the current Director of Stetson’s Center for Excellence in Advocacy, I have been fortunate to have some small part in continuing the legacy of every professor, student and lawyer who have stood for Stetson’s commitment to excellence in both the practice and study of the law.
This Journal owes its creation and existence to the hard work of Dr. Timothy Kaye and Professor Catherine Bohl. Together they have brought to life the vision of the Stetson students who clamored for an outlet for practical legal scholarship. Their hard work and commitment took the idea of this Journal and made it a reality. I am grateful to them for their professionalism and dedication. Only at Stetson would an expert in tort law and a skills professor join together to create the online Journal you are currently viewing. It would have been impossible to create, staff, and manage it without their commitment and they are shining examples of what it means to be a professor of law at Stetson University.
The decision to build it from the ground up as an online Journal makes it potentially available any time, anywhere. The Journal’s format makes it easily accessible and readable to anyone with internet access and an HTML compliant browser. In this age of always on digital access Dr. Kaye’s unique ability to create and format a legal journal using cutting edge platforms has directly contributed to the creation of this Journal and bodes well for its longterm success. It is also in keeping with Stetson’s position as a leader in technology enhanced legal education, with offerings that include an Online Advocacy Resource Center, two online L.L.M. programs and the ability to produce professional level teaching and training materials in our on campus television production facilities.
This sort of project cannot come into existence without the support of the law school administration. Interim Dean Royal Gardner and Associate Dean Kristen Adams fully supported this Journal from its inception, and their leadership was an important step in its creation. Dean Chris Pietruskiewicz took up the banner when he came on board and has supported the Journal going forward. I am grateful to each of them for the work that they have done on behalf of the school and this Journal.
Stetson University College of Law has long dedicated itself to the idea that superior substantive legal knowledge must be combined with excellence in its practical application. To put it another way, we stand for the proposition that when law is learned contextually it increases the student’s knowledge base and ability to practice. This is an ideal that is directly in keeping with the current discussion sweeping through the practice of law and legal academia.
Many so-called elite law schools have focused for almost a century on removing the connection between the study of law and the practice of law — to the detriment of both. We do things differently here. This Journal supports the idea that substance and practice must be learned holistically during the law school experience, and that law schools have a duty to the bench and bar to provide useful resources. Stetson has a history of approaching the law school experience through the lens of the practice of law — a history that has stood the graduates of the law school in good stead as they transitioned from students to practitioners of the law. This Journal captures our longstanding commitment to excellence in the practice of law by mastering the substance contextually.
In these articles you will see the study of law informing the practice of law, and the practice of law effectively guiding the creation of relevant scholarship. To consider one without the other makes each less relevant in a world demanding relevancy. This is a unique position to take in legal education, but one that more and more schools are coming to realize must be a core component of a vibrant law school in today’s interconnected world. We are happy to welcome them to the party and would like to assure them that there is plenty of room left at the table for institutions valuing practical scholarship informing the academy, the bench, and the bar.
As they join us we will continue as we began, creating lawyers who not only master the complexities of legal theory, but who effectively use that knowledge of behalf of clients, the legal system, and the nation: Stetson lawyers.

Footnotes

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Advocacy Spotlight: Justice Peggy Quince http://www2.stetson.edu/advocacy-journal/advocacy-spotlight-justice-peggy-quince/ http://www2.stetson.edu/advocacy-journal/advocacy-spotlight-justice-peggy-quince/#comments Wed, 08 Jan 2014 02:24:31 +0000 http://www2.stetson.edu/advocacy-journal/?p=274

Erik Johanson1 1 Founding Editor, Stetson Journal of Advocacy and the Law. I would like to thank Dr. Tim Kaye for his helpful comments and suggestions on an earlier draft.

1 Stetson J. Advoc. & L. 12 (2014)

I. Introduction

The Stetson Journal of Advocacy and the Law is not only the first online law review designed to be read online; it is also the first online law review dedicated to discussing emerging trends, techniques, and developments related to the specialism of advocacy. Stetson is, of course, well known for being consistently ranked as the nation’s top law school for trial advocacy,2 2 See e.g. US News & World Report, Trial Advocacy Rankings 2013. and the Journal certainly aims to build on those well-established institutional strengths.
Yet, just as Stetson offers excellence in other aspects of legal advocacy, the Journal too is keen to include contributions discussing all aspects of advocacy and the law, both oral and written. Crucially, moreover, we are keen to escape from the recent trend that has seen the readership of law reviews dwindle as they have become increasingly written by and for an ever-narrowing group of academics. Instead, we aim to provide a useful resource that reaches well beyond the academy to assist practitioners striving to represent their clients ever more effectively.
Many of our articles will, consequently, be written by experienced practitioners, passing on useful lessons they have learned and tips for future success. We have also established a Board of Advisers, with a membership including experienced judges and attorneys, to assist us with the selection and editing of articles.

II. Justice Peggy A. Quince

The first person whom we invited to join the Board was Florida Supreme Court Justice Peggy A. Quince.3 3 See Justices of the Florida Supreme Court. Justice Quince has a long association with Stetson University College of Law, going back at least until 1999, when she was awarded an honorary doctor of laws degree. Indeed, her career on the bench began in the very judicial district in which Stetson is situated — for Justice Quince first became a judge in January 1994, when she was appointed to Florida’s Second District Court of Appeal, whose district encompasses the Tampa Bay area.
Justice Quince was elevated to the Florida Supreme Court in 1999, becoming only the third woman — and the very first female African-American –- to sit as a Justice on the Supreme Court of Florida. From July 1, 2008 until June 30, 2010, she was Florida’s Chief Justice, becoming the first African-American woman to head any of the branches of Florida government.
In anticipation of the Journal’s inaugural edition, our founding student editors, Erik Johanson and Jamie Combee, traveled to Tallahassee, Florida and met with Justice Quince in her chambers both to discuss her motivation for entering the practice of law and to listen to her advice for advocacy practitioners.
Justice Quince was a gracious host, as she told us how she had initially planned to become a doctor, even obtaining a Bachelor of Science degree in zoology. Her intentions changed, however, as — learning lessons from the Civil Rights Movement — she realized that the law could empower her to combat societal injustice.
This new motivation crystallized while an undergraduate at Howard University. She was a senior at the time of the Kent State shootings on May 4, 1970, in which members of the Ohio National Guard shot dead four unarmed students at Kent State University, and wounded nine others, leaving one permanently paralyzed.4 4 See Kent State shootings. As Justice Quince put it, that infamous event in American History “led me to begin thinking about the law, and how the law was applicable to the social issues of that era.”5 5 See Rick Hampson, 1970 Kent State shootings are an enduring history lesson, USA Today, May 4, 2010.
Accordingly, Justice Quince converted her passion for medicine into one for the rule of law, and enrolled at the Catholic University of America, Columbus School of Law in Washington, DC. While studying at Catholic, Justice Quince worked for neighborhood legal aid organizations and dedicated herself to a wide range of legal issues ranging from bankruptcy to rent control. After law school, Justice Quince went to work for the rent control office in Washington, D.C. before embarking on a career that has spanned private practice (in Norfolk, Virginia and then Bradenton, Florida), the Florida Attorney General’s Office, the Second District Court of Appeal, and the Florida Supreme Court.

III. Truthfulness & Candor

Throughout her career, Justice Quince has emphasized the values of candor, truthfulness, and professionalism. Perhaps this is partly a subliminal response to those terrible events at Kent State. Despite the investigation and report of the President’s Commission on Campus Unrest6 6 The Report of the President's Commission on Campus Unrest. — an inquiry established by President Nixon to investigate the shootings at both Kent State and Jackson State, where two black students were shot dead by police ten days later7 7 Jackson State May 1970. — the reason why the Guard began shooting that day at Kent State remains unclear.8 8 See John Mangels, New analysis of 40-year-old recording of Kent State shootings reveals that Ohio Guard was given an order to prepare to fire, Cleveland.com, May 9, 2010. Obviously, at least some of those involved have been less than candid about exactly what happened.
By contrast, after reminding us that she chose to pursue a legal career in order to help effect societal change following the civil rights movement, Justice Quince emphasized repeatedly that candor and truthfulness are the foundations of legal practice:

Advocacy means being prepared to represent the best interests of your client, but always within the bounds of being truthful and professional.

We asked Justice Quince whether that changes once someone becomes a judge because they then no longer have a client, or did she consider her “client” to be the state of Florida? No, these principles do not change, she told us. From the perspective of a Justice of the Supreme Court of Florida, her clients “are the people of the state of Florida.”
Some advocacy teachers advise that advocates should take every opportunity to “spin” both the facts of the case, and the legal analysis, so as to align as closely as possible with the interests of the client. Justice Quince takes the opposite view. Not only is such a lack of candor unprofessional, it is actually likely to be much less effective, since the court will not feel able to rely on the advocate if the question is close.
Indeed, Justice Quince noted that advocates who provide the court with a complete and objective recitation of the facts often gain credibility with the court. Justice Quince stressed that “courts always think about whether they can rely on what [the advocate] has just said,” and that the most effective advocates “deal with undesirable facts up front.” Additionally, Justice Quince reminded us that, in close cases, advocates should view their arguments from the court’s perspective, and “ask themselves how their position supports the best interests of the state.”

IV. Making a Good Record

One of the mistakes that Justice Quince sometimes sees advocates making is that they approach appellate advocacy in much the same way as trial advocacy. Justice Quince stressed, by contrast, that the standard of review applied by an appellate court almost always precludes it from correcting every error that might have been made at trial.
Indeed, allegedly inappropriate findings of facts can rarely be corrected at all. Justice Quince pointed out that mistakes and oversights during trial often can only be overcome by a showing of egregious or fundamental error. While it is not impossible for advocates to make such a showing, Justice Quince told us that the requisite circumstances occur fairly infrequently.
Justice Quince therefore emphasized that, instead of appellate advocacy following trial advocacy, it is trial attorneys who need constantly to bear in mind the constraints on appellate advocacy so as to provide the best possible basis for making an appeal (if that proves necessary). In particular, attorneys:

need to always be sure that they are making a good record, and need to articulate, with specificity, the grounds for their objections.

After all, if something is not in the record, it cannot be reviewed. And objections that were not clearly articulated do not preserve that issue for subsequent review.

V. Law Reviews and the Courts

Finally, since the occasion for this interview was the establishing of the Stetson Journal of Advocacy and the Law, we asked Justice Quince to discuss the pros and cons of academic legal publications. Justice Quince told us that:

Rather than being conclusion oriented, the best articles provide a true and objective dialogue about a particular issue.

While authors are often motivated to write in order to effect change, Justice Quince emphasized that the true value of an academic legal publication — whether to a court, or more generally — is its ability to function as an educational resource.
We found this insight particularly instructive. Accordingly, while we include one conclusion oriented article — an important call for the recognition of certain forms of prosecutorial misconduct –- the Journal’s first edition includes an article on torts that provides a timely reminder of the importance not only of questioning others but also ourselves; an essay on the behavioral psychology of appellate persuasion that provides a series of suggestions for improving the practice of appellate advocacy; and an article that provides helpful guidance on negotiating the federal rules of evidence (particularly on hearsay) in the context of bankruptcy law.
We have selected these articles not only because they provide creative solutions to contemporary legal issues, but also to serve as educational resources for practicing attorneys who are striving to represent their clients professionally with truthfulness and candor.

Footnotes

1Founding Editor, Stetson Journal of Advocacy and the Law. I would like to thank Dr. Tim Kaye for his helpful comments and suggestions on an earlier draft.
2See e.g. US News & World Report, Trial Advocacy Rankings 2013.
5See Rick Hampson, 1970 Kent State shootings are an enduring history lesson, USA Today, May 4, 2010.
8See John Mangels, New analysis of 40-year-old recording of Kent State shootings reveals that Ohio Guard was given an order to prepare to fire, Cleveland.com, May 9, 2010.

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Teaching Law Day: A Senior Moment http://www2.stetson.edu/advocacy-journal/teaching-law-day-a-senior-moment/ http://www2.stetson.edu/advocacy-journal/teaching-law-day-a-senior-moment/#comments Wed, 08 Jan 2014 02:24:19 +0000 http://www2.stetson.edu/advocacy-journal/?p=271

Michael A. Mogill1 1 Professor of Law, The Dickinson School of Law of the Pennsylvania State University; B.S., University of Illinois, Champaign-Urbana; J.D., Northeastern University School of Law; LL.M., Temple University School of Law. The author wishes to dedicate this article to residents of one of our nursing homes in Carlisle, Pennsylvania, for their candid comments during the law day discussion, and his appreciation to Ian Hill for his valuable research and editing, to his son, Adam Mogill, an aspiring future law student, for his thoughtful comments and provocative questions, and to Sherry Miller for preparing this manuscript.

1 Stetson J. Advoc. & L. 34 (2014)
I have often enjoyed those moments when I have been asked to give speeches or provide remarks in various forums, whether it be in a school, cultural, or religious atmosphere.2 2 See Michael A. Mogill, To Be or Not to Be … a Lawyer — It’s Elementary, 1 Accord, Phx. L. Rev. Online 5 (2012); Michael A. Mogill, One Not-So-Dirty Word, 11 Whittier L.J. Child & Fam. Advoc. 115 (2011); Michael A. Mogill, Wait Until Next Year — Again, 4 DePaul J. Sports & Contemp. Probs. 1 (2008); Michael A. Mogill, Eight Simple Rules for Stating My Dogma, 6 Rutgers J.L. & Rel. 3 (2005); and Michael A. Mogill, Take Me Out to the Synagogue, 14 Seton Hall J. Sports & Entm't L. 101 (2004). Having lately addressed students at elementary, middle, and law school events, I was recently approached by a colleague who asked if I would share my thoughts at a local nursing home as part of that facility’s speakers program. The program consisted of a monthly series of contemporary topics for its residents. As I have always viewed teaching as an opportunity to also learn from others, I quickly agreed to give a presentation and contacted the activities director at the home to get an idea regarding the interests of the residents. Noting that my remarks were to be given close to the observance of Law Day, I then developed the following lesson plan …

I. Opening Statements

The multipurpose room at the nursing home was filled with about thirty residents, most of whom were ambulatory and who were genuinely enthusiastic in their greeting. I had learned from the activities director that those attending wanted to learn about many aspects of lawyering, including how law students are taught, what skills lawyers need, what characteristics make for a “good” lawyer, and how does the legal system really work — in particular, the director advised that the residents were especially interested in the intricacies of the jury system. Thus I decided to begin my remarks by providing some historical perspective on both the role and growth of the legal profession in our society. I then moved on to the methodology of educating law students to serve as effective advocates, while suggesting the skills and traits that would produce a successful attorney.
While the residents were attentive to my remarks (making this a contrast to certain days in the classroom), I had planned to structure this presentation around their participation, rather than my lecturing. In essence, I hoped to engage them in exploring our jury system by involving them in a dialogue in which they would actively contribute to the discussion of a contemporary issue. And I decided that the best manner to do so would be to empanel them all as members of a jury, retrying what has become both an eye-opening and controversial decision, one that has provoked strong feelings on behalf of those who are critical of our legal system as contrasted to those who promote the idea of corporate accountability. Being a Torts professor, I had previously invoked this role-play in the classroom, which I found led to wide-ranging and at times highly charged discussions. And so we turned to Liebeck v. McDonald’s Restaurants, a case that has simply become known as “Hot Coffee.”3 3 Hot Coffee: Is Justice Being Served? (HBO Documentary Films, 2011).

II. The Background Facts

The residents acknowledged that they had all heard of this case. Many instantly commented that they remembered this involved a plaintiff who had “hit the jackpot” based upon a “bogus” claim.4 4 See Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 709 (1997). But to make sure that we were all on the same page, I briefly refreshed their recollection by telling them that the plaintiff was Stella Liebeck, a seventy-nine year old woman who was a passenger in her grandson’s car. She had just purchased a cup of coffee from the drive-through lane, and she had tried to open the cup after her grandson had parked in the restaurant parking lot.5 5 S. Reed Morgan, Verdict Against McDonald’s Is Fully Justified, 17 Nat'l L.J. 8, 20 (1994); Kevin G. Cain, AND NOW THE REST OF THE STORY … The McDonald’s Coffee Lawsuit, 11 J. Consumer & Com. L. 14, 15 (2007); Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 269 (1996). The coffee spilled on her, and she subsequently sued McDonald’s for the injuries she had suffered. The jury returned a verdict for her of $200,000, which was ultimately reduced to $160,000 due to the finding that Ms. Liebeck was 20% at fault for her own conduct. It also awarded punitive damages of $2.7 million.6 6 Andrea Gerlin, A Matter of Degree: How a Jury Decided McDonald’s Should Pay a Woman Millions for a Hot-Coffee Spill, Wall St. J., Sept. 1, 1994; Liebeck v. McDonald’s Rests., P.T.S., Inc., 1995 WL 360309 (N.M. Dist. Aug. 18, 1994).
I then polled the residents as if they were the jury for the case, suggesting to them that they were truly a jury of peers for Ms. Liebeck. In essence, I asked if they agreed or disagreed with the verdict. The great majority were angry that she had been awarded any amount of money, but all were especially appalled by the amount of damages that had been given. We then discussed why they had that seemingly unanimous view in support of McDonald’s. The responses focused on either her own irresponsibility or greed, or the unfairness in holding McDonald’s culpable for selling hot coffee, a product which most assuredly must be sold in a heated condition. Many also commented that this case should never have been given to any jury. I then asked for the members of our unanimous “jury” to keep their hands aloft while I recited various facts from the case itself, and only to lower their hands if and when they decided that they were no longer willing to return a defendant’s verdict.

III. The Evidence

As I began to test the resolve of our “jury,” I prefaced my remarks by noting that in my teaching of Torts, I stress that the cases we discuss are very much fact driven. While there are rules used to decide the cases, most of these rules come from the common law rather than from statutes. Therefore, the facts are extremely influential in this area, so much so that I have suggested to my students that the course makes it seem that we are in “fact school” as much as we are in law school. Thus, the details of how the injury occurred are critical in determining who should be responsible for the harm that resulted from the incident in question, with the opposing lawyers advocating for how the law should be applied to the facts. Having provided this prelude, I proceeded to direct our resident “jury” to consider the following facts from the trial itself:
  1. The plaintiff’s argument was that the coffee was defective because it was served too hot;7 7 Liebeck v. McDonald’s Rests., P.T.S., Inc., 1995 WL 360309 (N.M. Dist. Aug. 18, 1994); S. Reed Morgan, Verdict Against McDonald’s Is Fully Justified, 17 Nat'l L.J. 8, 20 (1994).
  2. The coffee had been served at a temperature between 180–190 degrees;8 8 Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 718 (1997); S. Reed Morgan, Verdict Against McDonald’s Is Fully Justified, 17 Nat'l L.J. 8, 20 (1994); Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 269 (1996).
  3. This temperature was at least 20 degrees hotter than that of any competitor in the fast food industry;9 9 Andrea Gerlin, A Matter of Degree: How a Jury Decided McDonald’s Should Pay a Woman Millions for a Hot-Coffee Spill, Wall St. J., Sept. 1, 1994; Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 708 (1997); Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America (1996).
  4. Coffee served at home has a temperature ranging from 158–168 degrees, and is held at 150–157 degrees after three minutes;10 10 William Halton & Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis 190 (2006); Hot Coffee: Is Justice Being Served? (HBO Documentary Films, 2011).
  5. If coffee of the temperature of McDonald’s is spilled, it can cause full thickness 3rd degree burns in two to seven seconds, with these going through the skin and subcutaneous (under the skin) fat to damage muscle, tissue, and bone below;11 11 Andrea Gerlin, A Matter of Degree: How a Jury Decided McDonald’s Should Pay a Woman Millions for a Hot-Coffee Spill, Wall St. J., Sept. 1, 1994; Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 718 (1997); Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 270 (1996).
  6. The plaintiff suffered 3rd degree burns to her legs, posterior, and genital area, with 16% permanent scarring;12 12 Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 269 (1996).
  7. The plaintiff remained in the hospital for eight days, while she underwent whirlpool debridement procedures (surgical removal of foreign material and dead tissue from a wound to prevent infection and to promote healing) to remove necrotized (dead) and contaminated tissue and then had several skin grafts. Both procedures produce excruciating pain and disfigurement and were necessary to save her life;13 13 Kevin G. Cain, AND NOW THE REST OF THE STORY … The McDonald’s Coffee Lawsuit, 11 J. Consumer & Com. L. 14, 15 (2007); David N. Herndon, Total Burn Care (2007).
  8. McDonald’s knew of this risk of injury for over ten years through 700 previous instances documented in their own files;14 14 Andrea Gerlin, A Matter of Degree: How a Jury Decided McDonald’s Should Pay a Woman Millions for a Hot-Coffee Spill, Wall St. J., Sept. 1, 1994; Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 718 (1997); Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 269 (1996).
  9. McDonald’s did not warn of the severity of the burn potential;15 15 Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 720 (1997); Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 269 (1996).
  10. McDonald’s brewed at this temperature because this produces ten more cups of coffee from a ten pound bag of coffee;16 16 Hot Coffee: Is Justice Being Served? (HBO Documentary Films, 2011).
  11. Mrs. Liebeck originally requested that McDonald’s pay her medical expenses not covered by Medicare, totaling approximately $11,000, and McDonald’s counteroffered $800;17 17 Kevin G. Cain, AND NOW THE REST OF THE STORY … The McDonald’s Coffee Lawsuit, 11 J. Consumer & Com. L. 14, 15 (2007); Andrea Gerlin, A Matter of Degree: How a Jury Decided McDonald’s Should Pay a Woman Millions for a Hot-Coffee Spill, Wall St. J., Sept. 1, 1994; Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 719 (1997); Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 269 (1996).
  12. The lawsuit requested $90,000 in damages;18 18 Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 719 (1997); S. Reed Morgan, Verdict Against McDonald’s Is Fully Justified, 17 Nat'l L.J. 8, 20 (1994).
  13. This was the plaintiff’s first ever lawsuit;19 19 Kevin G. Cain, AND NOW THE REST OF THE STORY … The McDonald’s Coffee Lawsuit, 11 J. Consumer & Com. L. 14, 15 (2007); Andrea Gerlin, A Matter of Degree: How a Jury Decided McDonald’s Should Pay a Woman Millions for a Hot-Coffee Spill, Wall St. J., Sept. 1, 1994.
  14. A mediator recommended that McDonald’s settle the case for $225,000 but McDonald’s refused to do so;20 20 Andrea Gerlin, A Matter of Degree: How a Jury Decided McDonald’s Should Pay a Woman Millions for a Hot-Coffee Spill, Wall St. J., Sept. 1, 1994; Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 719 (1997); Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 269 (1996).
  15. McDonald’s witnesses testified that they did not intend to turn down the heat on their coffee;21 21 Kevin G. Cain, AND NOW THE REST OF THE STORY … The McDonald’s Coffee Lawsuit, 11 J. Consumer & Com. L. 14, 17 (2007); Andrea Gerlin, A Matter of Degree: How a Jury Decided McDonald’s Should Pay a Woman Millions for a Hot-Coffee Spill, Wall St. J., Sept. 1, 1994.
  16. Doctor’s testified that this was one of the worst scald cases they had ever seen (I did not present the photos of the injuries22 22 Mrs. Liebeck’s injuries are candidly presented in the Hot Coffee DVD. Hot Coffee: Is Justice Being Served? (HBO Documentary Films, 2011). because this exercise was not an actual trial, and I feared these elders might be too uncomfortably shocked and unsettled by the images);23 23 S. Reed Morgan, Verdict Against McDonald’s Is Fully Justified, 17 Nat'l L.J. 8, 20 (1994).
  17. Most consumers do not know that coffee this hot causes such severe burns, nor of McDonald’s practice of serving coffee this hot;24 24 S. Reed Morgan, Verdict Against McDonald’s Is Fully Justified, 17 Nat'l L.J. 8, 20 (1994).
  18. McDonald’s daily revenue from the sales of coffee alone was $1.35 million;25 25 Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 722 (1997); S. Reed Morgan, Verdict Against McDonald’s Is Fully Justified, 17 Nat'l L.J. 8, 20 (1994).
  19. The award of punitive damages represented two days of McDonald’s nationwide coffee sales;26 26 Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 718 (1997); S. Reed Morgan, Verdict Against McDonald’s Is Fully Justified, 17 Nat'l L.J. 8, 20 (1994).
  20. The trial judge, a conservative Republican, commented that McDonald’s acted with wanton recklessness and with an indifference to the consequences of its conduct;27 27 Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 269 (1996) (quoting from the transcript of proceedings in Liebeck v. McDonald’s Rests., P.T.S., Inc., 1995 WL 360309 (N.M. Dist. Aug. 18, 1994).
  21. The trial judge ultimately reduced the total verdict, including compensatory and punitive damages, to $640,000;28 28 Kevin G. Cain, AND NOW THE REST OF THE STORY … The McDonald’s Coffee Lawsuit, 11 J. Consumer & Com. L. 14, 17 (2007); Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 723 (1997).
  22. The plaintiff never fully recovered her health after the injury.29 29 Hot Coffee: Is Justice Being Served? (HBO Documentary Films, 2011).
During my previous career as a trial attorney, I would try to be sure to keep one eye on the witness, another on the judge, and a “third” (actually, that “floating” second eye) on the jury. I maintained that it was essential for the advocate to observe the jury’s reaction in order to sense how its members were perceiving the evidence that was proffered. One accurate indicator tended to be whether their body language revealed that they understood the importance of the evidence or if they portrayed confusion. I have continued to mimic that practice in the classroom, with my students acting as my “jury” to provide feedback, however subtle it may be, via their own body language, confused looks, or simply unconscious nodding to indicate if they have been following our dialogue. Thus, as I presented each of the above facts to our “jury” that day, I continued to gaze at the residents to note their reactions. As each of the facts was read, there were murmurs and surprised looks among them, heads shaking, and a hand occasionally went down. By the time that I had finished my recitation, there was not a single hand still raised. After I was assured by each of them that this was not at all the result of their own weariness, we discussed why they had changed their initial “verdict.”

IV. The Post-Deliberation Deliberation

I began our discussion by reminding the residents that almost all of them had only minutes earlier favored a verdict for the defendant McDonald’s but now they were unanimous in believing that the damages were justified. This mimicked the initial view of some of the actual jurors who had decided the case.30 30 Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 268 (1996). I then asked why the sudden reversal. And now the anger had shifted. One resident commented that they now truly knew the facts. This was not surprising given that the story became a matter of household conversation and most of the facts from the case were discarded in favor of sound bites, which had been perpetuated from the initial AP wire reporting through the late night comedy and talk show circuit.31 31 Jay Leno eventually stopped using the case for comedic or rhetorical effect after he learned the actual facts of the case. Mrs. Liebeck’s attorney reported that Leno called him to convey his appreciation for a strong justice system that would hold corporations accountable for their wrongdoings. See William Halton & Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis 183–224 (2006); Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 273 268 (1996). The resident had previously only known the inaccuracies and exaggerations that had been portrayed via the media and prolonged by various “public interest” groups spending millions of dollars on advertising. These included groups such as the American Tort Reform Association, APCO (a public relations firm owned by Philip Morris), and the U.S. Chamber of Commerce, among others.32 32 ABC John Stossel Special, The Blame Game: Are We a Country of Victims? August 17, 1995.
Another resident stated that McDonald’s should be made accountable for its conduct, especially given its prior knowledge of burning incidents and its “arrogance” in refusing to alter its practices. Still a third resident offered that McDonald’s conduct was indeed more culpable because they had taken advantage of a fellow senior citizen, and that he would have returned even a higher amount of damages on Ms. Liebeck’s behalf. Similar comments followed.
I then queried whether it was truly fair to have a jury decide cases like this, given the explosive and possibly prejudicial nature of the facts as they now understood them. A resident, one of a few who admitted to ever having previously served as a real life juror, responded that it was her belief that we should trust the jury. It was her view that only those people who served on the panel truly knew the facts of the case, while the general public only heard what was publicized or propagandized. A second resident followed by stressing the importance of victims having access to the courts to seek redress; he stressed that victims would otherwise lose their freedom to have cases decided by their peers. The end result would then be decisions being determined by a jury of one, that “one” being the judge rather than the proverbial cross-section of the community. And another resident acknowledged that perhaps the public had overreacted to the Liebeck verdict, suggesting that Ms. Liebeck’s fate could have been that of any one of the residents sitting in that multipurpose room. Again, other residents expressed their agreement.
I then pushed further by suggesting that the concept now familiarly known as “tort reform” is premised on the notion of eliminating frivolous lawsuits and limiting punitive damages. I advised that those favoring such reform argue that this will ultimately hold down the costs to businesses, which will allow them to operate more efficiently, thus benefiting the public in the form of lower prices. As a result, limiting access to the courts for those who would seek to benefit from what has been characterized as “jackpot justice” or “litigation lottery,” or placing caps on non-economic damages (such as punitive damages or pain and suffering) would ensure that companies are therefore able to accurately predict the economic impact likely to occur if they were to harm someone.33 33 W. Kip Viscusi, The Social Costs of Punitive Damages Against Corporations in Environmental and Safety Torts, 87 Geo. L.J. 285 (1998).
Now the room was really astir, as the residents reacted nearly as one in voicing that the public reaction to Liebeck was an example of the zeal for tort reform gone wrong. They had come to see the myth of that concept, that tort reform does not help those people who have been wronged. But instead, I asked, is it not possible that there are people who might try to “game” the system and bring unjustified suits, thereby taking advantage of the legal process? I added that this could be potentially disastrous to a small business owner, one who lacks the resources to repeatedly defend herself or her company in court. Several of the residents responded by indicating that, while that was possible, they trusted that a well-informed jury would prevent that from happening, and that they would rather trust the common sense of the jury to make socially responsible decisions, instead of relying on the economic incentive of corporations to avoid doing so.
As our discussion wore down, it was clear that the tenor in the room had indeed changed. The recognition that each of us is potentially vulnerable to injury and that those causing the harm should be made accountable for those harms led our “jurors” in the end to conclude through their own sense of advocacy that “tort respect” would better protect victims. Indeed, in the eyes of the residents, the need to protect and recompense individuals from harm, while holding defendants culpable for their conduct, trumped “tort reform” (or the injustices that are created to those injured, such that “tort reform” has in effect become “tort deform”) once the facts were known.
As our session concluded, one of the residents asked if I knew what ultimately happened to the verdict by the jury, especially after the judge had issued his remittitur. I responded that the case was subsequently settled prior to appeal via a sealed agreement, such that we will not be able to know the amount of the final “bill” paid by McDonald’s.34 34 Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 272 (1996). But I also added that immediately after the jury’s verdict, McDonald’s restaurants in Albuquerque were selling their coffee at a comparatively cool 158 degrees.35 35 Andrea Gerlin, A Matter of Degree: How a Jury Decided McDonald’s Should Pay a Woman Millions for a Hot-Coffee Spill, Wall St. J., Sept. 1, 1994. However, as an aside, I hasten to note that one commentator suggested that this might not have been the result of a retooling of McDonald’s corporate policy. Instead, as a matter of general industry practice, cups that contain hot beverages are now stronger and easier to handle than in 1994. Moreover, most cars now include beverage holders. Yet, it is still contended that sellers should warn customers that the coffee is not merely hot, but scalding.36 36 Matt Fleischer-Black, One Lump or Two, The American Lawyer, June 1, 2004. And, now knowing of the actual facts of the case, several of the residents smiled their approval of the ultimate result, convinced that they themselves, through our role-play that day, had made a real and positive difference in the lives of others.
I thanked the residents for their “service” and for being active participants during our role-play. Several asked me to stay afterward to share in their mid-afternoon snack and to continue our discussion. Delighted by the warmth of the invitation and forever eager to learn through my encounters with others, I obliged. The residents commented that our exercise that day had shaken up their belief systems, that Ms. Liebeck represented all of them as potential victims, and that they were no longer so readily disposed to believe whatever was conveyed by interested “others” about cases at trial. Many of them shared their belief about the importance of juries and of their own longing to serve on a jury panel, so that they would decide matters based upon what they personally heard and observed, not on the reporting of those “others.” And in expressing their gratitude for the time I spent, an occasion which to me was a mutual learning experience, they asked that I offer my own comments, as an impartial participant that day, to my peers, practitioners, and aspiring law students. In doing so, they suggested that these professionals might benefit from being reminded of the importance of questioning others and even ourselves at times. And in deference to the advocacy of those elders, and having enjoyed that mid-afternoon snack, I agreed to do so...

Footnotes

1Professor of Law, The Dickinson School of Law of the Pennsylvania State University; B.S., University of Illinois, Champaign-Urbana; J.D., Northeastern University School of Law; LL.M., Temple University School of Law. The author wishes to dedicate this article to residents of one of our nursing homes in Carlisle, Pennsylvania, for their candid comments during the law day discussion, and his appreciation to Ian Hill for his valuable research and editing, to his son, Adam Mogill, an aspiring future law student, for his thoughtful comments and provocative questions, and to Sherry Miller for preparing this manuscript.
2See Michael A. Mogill, To Be or Not to Be … a Lawyer — It’s Elementary, 1 Accord, Phx. L. Rev. Online 5 (2012); Michael A. Mogill, One Not-So-Dirty Word, 11 Whittier L.J. Child & Fam. Advoc. 115 (2011); Michael A. Mogill, Wait Until Next Year — Again, 4 DePaul J. Sports & Contemp. Probs. 1 (2008); Michael A. Mogill, Eight Simple Rules for Stating My Dogma, 6 Rutgers J.L. & Rel. 3 (2005); and Michael A. Mogill, Take Me Out to the Synagogue, 14 Seton Hall J. Sports & Entm't L. 101 (2004).
3Hot Coffee: Is Justice Being Served? (HBO Documentary Films, 2011).
4See Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 709 (1997).
5S. Reed Morgan, Verdict Against McDonald’s Is Fully Justified, 17 Nat'l L.J. 8, 20 (1994); Kevin G. Cain, AND NOW THE REST OF THE STORY … The McDonald’s Coffee Lawsuit, 11 J. Consumer & Com. L. 14, 15 (2007); Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 269 (1996).
6Andrea Gerlin, A Matter of Degree: How a Jury Decided McDonald’s Should Pay a Woman Millions for a Hot-Coffee Spill, Wall St. J., Sept. 1, 1994; Liebeck v. McDonald’s Rests., P.T.S., Inc., 1995 WL 360309 (N.M. Dist. Aug. 18, 1994).
7Liebeck v. McDonald’s Rests., P.T.S., Inc., 1995 WL 360309 (N.M. Dist. Aug. 18, 1994); S. Reed Morgan, Verdict Against McDonald’s Is Fully Justified, 17 Nat'l L.J. 8, 20 (1994).
8Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 718 (1997); S. Reed Morgan, Verdict Against McDonald’s Is Fully Justified, 17 Nat'l L.J. 8, 20 (1994); Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 269 (1996).
9Andrea Gerlin, A Matter of Degree: How a Jury Decided McDonald’s Should Pay a Woman Millions for a Hot-Coffee Spill, Wall St. J., Sept. 1, 1994; Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 708 (1997); Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America (1996).
10William Halton & Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis 190 (2006); Hot Coffee: Is Justice Being Served? (HBO Documentary Films, 2011).
11Andrea Gerlin, A Matter of Degree: How a Jury Decided McDonald’s Should Pay a Woman Millions for a Hot-Coffee Spill, Wall St. J., Sept. 1, 1994; Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 718 (1997); Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 270 (1996).
12Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 269 (1996).
13Kevin G. Cain, AND NOW THE REST OF THE STORY … The McDonald’s Coffee Lawsuit, 11 J. Consumer & Com. L. 14, 15 (2007); David N. Herndon, Total Burn Care (2007).
14Andrea Gerlin, A Matter of Degree: How a Jury Decided McDonald’s Should Pay a Woman Millions for a Hot-Coffee Spill, Wall St. J., Sept. 1, 1994; Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 718 (1997); Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 269 (1996).
15Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 720 (1997); Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 269 (1996).
16Hot Coffee: Is Justice Being Served? (HBO Documentary Films, 2011).
17Kevin G. Cain, AND NOW THE REST OF THE STORY … The McDonald’s Coffee Lawsuit, 11 J. Consumer & Com. L. 14, 15 (2007); Andrea Gerlin, A Matter of Degree: How a Jury Decided McDonald’s Should Pay a Woman Millions for a Hot-Coffee Spill, Wall St. J., Sept. 1, 1994; Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 719 (1997); Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 269 (1996).
18Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 719 (1997); S. Reed Morgan, Verdict Against McDonald’s Is Fully Justified, 17 Nat'l L.J. 8, 20 (1994).
19Kevin G. Cain, AND NOW THE REST OF THE STORY … The McDonald’s Coffee Lawsuit, 11 J. Consumer & Com. L. 14, 15 (2007); Andrea Gerlin, A Matter of Degree: How a Jury Decided McDonald’s Should Pay a Woman Millions for a Hot-Coffee Spill, Wall St. J., Sept. 1, 1994.
20Andrea Gerlin, A Matter of Degree: How a Jury Decided McDonald’s Should Pay a Woman Millions for a Hot-Coffee Spill, Wall St. J., Sept. 1, 1994; Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 719 (1997); Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 269 (1996).
21Kevin G. Cain, AND NOW THE REST OF THE STORY … The McDonald’s Coffee Lawsuit, 11 J. Consumer & Com. L. 14, 17 (2007); Andrea Gerlin, A Matter of Degree: How a Jury Decided McDonald’s Should Pay a Woman Millions for a Hot-Coffee Spill, Wall St. J., Sept. 1, 1994.
22Mrs. Liebeck’s injuries are candidly presented in the Hot Coffee DVD. Hot Coffee: Is Justice Being Served? (HBO Documentary Films, 2011).
23S. Reed Morgan, Verdict Against McDonald’s Is Fully Justified, 17 Nat'l L.J. 8, 20 (1994).
24S. Reed Morgan, Verdict Against McDonald’s Is Fully Justified, 17 Nat'l L.J. 8, 20 (1994).
25Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 722 (1997); S. Reed Morgan, Verdict Against McDonald’s Is Fully Justified, 17 Nat'l L.J. 8, 20 (1994).
26Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 718 (1997); S. Reed Morgan, Verdict Against McDonald’s Is Fully Justified, 17 Nat'l L.J. 8, 20 (1994).
27Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 269 (1996) (quoting from the transcript of proceedings in Liebeck v. McDonald’s Rests., P.T.S., Inc., 1995 WL 360309 (N.M. Dist. Aug. 18, 1994).
28Kevin G. Cain, AND NOW THE REST OF THE STORY … The McDonald’s Coffee Lawsuit, 11 J. Consumer & Com. L. 14, 17 (2007); Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over Tort Reform, 26 Cap. U.L. Rev. 701, 723 (1997).
29Hot Coffee: Is Justice Being Served? (HBO Documentary Films, 2011).
30Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 268 (1996).
31Jay Leno eventually stopped using the case for comedic or rhetorical effect after he learned the actual facts of the case. Mrs. Liebeck’s attorney reported that Leno called him to convey his appreciation for a strong justice system that would hold corporations accountable for their wrongdoings. See William Halton & Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis 183–224 (2006); Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 273 268 (1996).
32ABC John Stossel Special, The Blame Game: Are We a Country of Victims? August 17, 1995.
33W. Kip Viscusi, The Social Costs of Punitive Damages Against Corporations in Environmental and Safety Torts, 87 Geo. L.J. 285 (1998).
34Ralph Nader & Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America 272 (1996).
35Andrea Gerlin, A Matter of Degree: How a Jury Decided McDonald’s Should Pay a Woman Millions for a Hot-Coffee Spill, Wall St. J., Sept. 1, 1994.
36Matt Fleischer-Black, One Lump or Two, The American Lawyer, June 1, 2004.

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The Debtor Said What?! http://www2.stetson.edu/advocacy-journal/the-debtor-said-what/ http://www2.stetson.edu/advocacy-journal/the-debtor-said-what/#comments Wed, 08 Jan 2014 02:23:34 +0000 http://www2.stetson.edu/advocacy-journal/?p=268

Tiffany A. DiIorio1 1 Tiffany A. DiIorio is an attorney with the law firm of Adams and Reese LLP, in the firm’s Tampa office. Ms. DiIorio is a member of the firm’s bankruptcy and creditors’ rights practice group, with an emphasis on trustee representation.

1 Stetson J. Advoc. & L. 47 (2014)

I. Introduction

Understanding the hearsay rule and its various exclusions and exceptions is a difficult task for both law students and legal practitioners. Most law students and lawyers alike generally understand the basics of hearsay. Hearsay is an out-of-court statement, which is used to prove the truth of the matter asserted in the statement.2 2 Fed. R. Evid. 801(c). Federal Rule of Evidence 802 does not permit hearsay to be admitted as evidence, unless the statement qualifies as an enumerated exception to the hearsay rule.3 3 Fed. R. Evid. 802. In addition to the exceptions, Federal Rule of Evidence 801 excludes certain statements from the definition of hearsay. Specifically, the out-of-court statements made by an opposing party are not hearsay.4 4 Fed. R. Evid. 801(d)(2).
What is likely confusing to even the most skilled practitioner is the application of the opposing-party-statement exclusion of Rule5 5 Reference herein to the “Rule” or “Rules” shall mean the Federal Rules of Evidence or the specific Rule of Evidence identified therein. 801(d)(2) in the context of a lawsuit brought or maintained by a bankruptcy trustee. When a debtor files for bankruptcy, as discussed below, a third-party trustee may be appointed to administer the bankruptcy estate, including pursuing causes of actions for the benefit the bankruptcy estate. The introduction of this third party makes it easy to confuse who qualifies as the “opposing party” for purposes of the hearsay rule — the debtor or the bankruptcy trustee. Are the pre-petition statements of a debtor attributable to a bankruptcy trustee? Should the pre-petition statements of a debtor be attributable to a bankruptcy trustee? Does it matter if the lawsuit is one that arises out of bankruptcy law or state law? These are difficult questions to answer, and the courts applying Rule 801(d)(2) in actions brought or maintained by a bankruptcy trustee have been equally divided in their answers.
This Article seeks to: (i) provide a general understanding of the role of a bankruptcy trustee and an explanation of adversary proceedings; (ii) provide an overview of the evolution of privity-based admissions from common law through the enactment of the Federal Rules of Evidence; (iii) summarize and provide an understanding of the legal authorities applying Rule 801(d)(2) in proceedings brought or maintained by a bankruptcy trustee; (iv) explain the potential consequences of the decisions relying on privity to determine whether pre-petition statements of a debtor should be admissible against a bankruptcy trustee; and (v) propose the proper analysis for determining whether pre-petition statements of a debtor should be admissible against a bankruptcy trustee.

II. The Bankruptcy Process and the Bankruptcy Trustee

The commencement of any bankruptcy case creates an estate generally consisting of all legal or equitable interests of a debtor in property as of the commencement of the case.6 6 11 U.S.C. § 541(a)(1) (2012). When a chapter 7 petition is filed, the United States Trustee appoints an impartial case trustee to serve as gatekeeper and administrator of the bankruptcy estate.7 7 11 U.S.C. § 701 (2012); 11 U.S.C. § 704 (2012). In a chapter 11 case, a trustee can be appointed upon the request of the United States Trustee or a party-in-interest, for cause, or if appointing a trustee would be in the best interests of the bankruptcy estate.8 8 11 U.S.C. § 1104(a) (2012). In either a chapter 7 or chapter 11 bankruptcy, the bankruptcy trustee’s primary role is to administer estate assets in an attempt to maximize the return available to a debtor’s unsecured creditors.9 9 Corporate Assets, Inc. v. Paloian, 368 F.3d 761, 767 (7th Cir. 2004). Generally, a bankruptcy trustee accomplishes this goal by selling assets of the bankruptcy estate.10 10 Hoffman v. Hartley (In re Hartley), 483 B.R. 700, 704 (Bankr. W.D. Wis. 2012). Additionally, a bankruptcy trustee may recover money or property for the benefit of the bankruptcy estate by exercizing his or her avoidance powers,11 11 Dawson v. Thomas (In re Dawson), 411 B.R. 1, 21 (Bankr. D.D.C. 2008). and by pursuing debtors’ non-bankruptcy causes of action for the benefit of the estate.12 12 Moneymaker v. Coben (In re Eisen), 31 F.3d 1447, 1451 (9th Cir. 1994).
Bankruptcy trustees derive their specific avoiding powers from sections 544, 545, 547, 548, and 549 of the Bankruptcy Code. More specifically, section 544 grants a bankruptcy trustee the power of a lien creditor and permits a bankruptcy trustee to exercise the power of existing creditors to avoid transfers of property of a debtor.13 13 11 U.S.C. § 544 (2012) Section 545 grants a bankruptcy trustee the power to avoid certain statutory liens.14 14 11 U.S.C. § 545 (2012) Section 547 of the Bankruptcy Code permits trustees to set aside preferential transfers made to creditors within 90 days and 1 year (for insiders) before the bankruptcy petition.15 15 11 U.S.C. § 547 (2012). Section 548 of the Bankruptcy Code permits trustees to recover transfers made within two years of the filing of the bankruptcy and made either with the intent to hinder, delay or defraud creditors or where the debtor received less than reasonably equivalent value in exchange for such transfer.16 16 11 U.S.C. § 548 (2012). Finally, section 549 permits a trustee to avoid transfers made after the filing of the bankruptcy petition without court permission.17 17 11 U.S.C. § 549 (2012).
Most often, a bankruptcy trustee employs his or her avoidance powers or pursues other causes of action through an adversary proceeding.18 18 See generally, Fed. R. Bankr. P. 7001. An adversary proceeding is a lawsuit that occurs under a bankruptcy case. It is tried in a federal bankruptcy court, before a bankruptcy court judge, and under most of the same rules of both procedure and evidence as an action filed in a federal district court. Adversary proceedings are very similar to actions filed in federal district court. They begin with the filing of a complaint, proceed through the answer and discovery stages, can involve a formal trial (including the introduction of evidence, both in the form of exhibits and live testimony) and conclude with a judgment or dismissal.19 19 The Honorable Christopher M. Klein, Bankruptcy Rules Made Easy (2001): A Guide to the Federal Rules of Civil Procedure that Apply in Bankruptcy, 75 Am. Bankr. L.J. 35, 38 (Winter 2001).
It is well known that all of the Federal Rules of Evidence apply to adversary proceedings.20 20 See Fed. R. Bankr. P. 9017; Boone v. Barnes (In re Barnes), 266 B.R. 397, 403 (8th Cir. BAP 2001). Additionally, Federal Rule of Evidence 1101 generally provides that the Rules of Evidence apply to United States bankruptcy court judges and to proceedings and cases in bankruptcy.21 21 Fed. R. Evid. 1101(a) &{} (b). This includes Rule 801(d)(2) and the exclusion to the hearsay rule referred to as “opposing party statements.”22 22 Fed. R. Evid. 801. What is perhaps less well known to both bankruptcy trustees and attorneys representing bankruptcy trustees is that pre-petition statements of a debtor may be considered admissions that can be used against a bankruptcy trustee under Federal Rule of Evidence 801(d)(2).23 23 Wilen v. Bayonne/Omni Dev., LLC (In re Bayonne Med. Ctr.), 2011 WL 5900960 *1 (Bankr. D.N.J. Nov. 1, 2011); Jansen v. Grossman (In re Hadlick), Ch. 7 Case No. 8:09-bk-22442-MGW, Adv. No. 8:10-ap-01423-MGW, slip op. at 1 (Bankr. M.D. Fla. Jan. 19, 2012).

III. The Admissions-By-Privity Doctrine

At common law, statements made by those in privity with a party to an action were considered admissions of that party.24 24 Huff v. White Motor Corp., 609 F.2d 286, 290–91 (7th Cir. 1979). Analogies to substantive law greatly affected the admissions-by-privity doctrine. Thus, for example, statements of predecessor-in-interest could be used against successors-in-interest, statements of one joint owner could be used against another joint owner, and statements of decedents could be used against their representatives, heirs, and next of kin; however, statements by tenants in common could not be used against another tenant in common and statements of one co-devisee could not be used against the other devisee.25 25 2 Kenneth S. Broun, McCormick on Evidence § 260 (7th ed. 2013).
During the early to mid 1900s, the two leading legal scholars on evidence law, John Henry Wigmore and Edmund M. Morgan, debated the proper use and application of the admissions-by-privity doctrine.26 26 4 John Henry Wigmore, Evidence in Trials at Common Law §§ 1080–1087 (Chadbourn rev. 1972); Edmund M. Morgan, Admissions, 12 Wash. L. Rev. 181 (1937); Edmund M. Morgan, The Rationale of Vicarious Admissions, 42 Harv. L. Rev. 462(1929). Wigmore generally supported the admissions-by-privity doctrine stating:

So far as one person is in privity in obligation with [an]other … there is equal reason for receiving against him such admissions of the other as furnished evidence of the act which charges them equally. Not only as a matter of principle does this seem to follow … but also as a matter of fairness, since the person who is chargeable in his obligations by the acts of another can hardly object to the use of such evidence as the other may furnish. Moreover as a matter of probative value, the admissions of a person having virtually the same interests involved and the motive and means for obtaining knowledge will in general be likely to be equally worthy of consideration.27 27 4 John Henry Wigmore, Evidence in Trials at Common Law §§ 1080–1087 (Chadbourn rev. 1972).

Wigmore believed that his approach applied equally to situations involving successors-in-interest, arguing that successors had the same interest and knowledge as their predecessors and such statements had the same testimonial value as if made by the successor.28 28 4 John Henry Wigmore, Evidence in Trials at Common Law §§ 1080–1087 (Chadbourn rev. 1972).
Morgan criticized both the admissions-by-privity doctrine and Wigmore’s views arguing it was wholly improper to import the property doctrines of identity of interest and privity of estates into the law of evidence.29 29 2 Kenneth S. Broun, McCormick on Evidence § 260 (7th ed. 2013). Specifically Morgan argued:

The dogma of vicarious admissions, as soon as it passes beyond recognized principles of representation, baffles the understanding. Joint ownership, joint obligations, privity of title, each and all furnish no criterion of credibility, no aid in the evaluation of testimony.30 30 Edmund M. Morgan, Admissions, 12 Wash. L. Rev. 181, 202 (1937).

In 1973, the Supreme Court submitted the first draft of the Federal Rules of Evidence to Congress.31 31 119 Cong. Rec. 3247 (Feb. 5, 1973). The drafters of the Federal Rules of Evidence generally accepted Morgan’s view, and omitted from the hearsay rule any provision for admitting declarations based on privity or identity of interest.32 32 2 Kenneth S. Broun, McCormick on Evidence § 260 (7th ed. 2013). In 1975, after review and revision by both the House and Senate, President Ford signed into law the Federal Rules of Evidence. Neither the House nor the Senate made any substantial changes to the original draft of Rule 801(d)(2), and it was enacted without any provision for admitting declarations based on privity.33 33 Act to Establish the Federal Rules of Evidence, Pub. L. No. 93–595 (codified under various sections of 28 U.S.C.).
In Huff v. White Motor Corporation, the first case to interpret Rule 801(d)(2) following the enactment of the Federal Rules of Evidence, the court noted that the admissibility of privity-based admissions in federal courts was now controlled by the Rules. The Huff court further noted that neither the Rules themselves nor the Advisory Committee Notes referred to any privity-based admissions, and thus the Rule represented a departure from common law. Specifically, the court stated that the explicitness of Rule 801(d) suggested that the legislature did not intend for courts to add new categories of admissions to those stated in the Rule. Accordingly, the court found that the Rules did not exclude privity-based admissions from hearsay, nor did the Rules treat privity-based admissions as an exception to hearsay. Thus, privity-based admissions were not admissible following the enactment of the Federal Rules of Evidence.34 34 Huff v. White Motor Corp., 609 F.2d 286, 290–91 (7th Cir. 1979).

IV. Applicability to Bankruptcy Trustees

Following the enactment of the Federal Rules of Evidence and the decision in Huff v. White Motor Corporation, it might appear to be well-settled law that privity-based admissions would no longer be admissible in federal courts. Notwithstanding, this seemingly well-settled principle becomes unsettled when an action is brought or maintained by a bankruptcy trustee. Of the five opinions discussed herein, three do not consider statements of a debtor to be admissible against a bankruptcy trustee as an admission of an opposing party. These courts employ a strict interpretation of Rule 801(d)(2), and find that regardless of the type of action brought by a bankruptcy trustee –- privity and identity of interests have no bearing on the determination of whether a statement is or is not hearsay.35 35 Calhoun v. Baylor, 646 F.2d 1158 (6th Cir. 1981); Anaconda-Ericsson, Inc. v. Hessen (In re Teltronics Servs., Inc.), 29 B.R. 139 (Bankr. E.D.N.Y. 1983); Jubber v. Sleater (In re Bedrock Mktg., LLC), 404 B.R. 929 (Bankr. D. Utah 2009). The remaining two opinions look to the type of action at issue, and if the cause of action is not one that belongs exclusively to the bankruptcy trustee, then these courts hold that because the bankruptcy trustee is the successor-in-interest to the debtor, the statements of the debtor can be admitted as statements of an opposing party against a bankruptcy trustee.36 36 Wilen v. Bayonne/Omni Dev., LLC (In re Bayonne Med. Ctr.), 2011 WL 5900960 *1 (Bankr. D.N.J. Nov. 1, 2011); Jansen v. Grossman (In re Hadlick), Ch. 7 Case No. 8:09-bk-22442-MGW, Adv. No. 8:10-ap-01423-MGW, slip op. at 1 (Bankr. M.D. Fla. Jan. 19, 2012).

Refusing to Admit Debtors’ Statements

The first court faced with determining the proper application Rule 801(d)(2) to a proceeding brought or maintained by a bankruptcy trustee was the Sixth Circuit in Calhoun v. Baylor. In Calhoun, the bankruptcy trustee brought suit against Baylor under Tennessee law seeking to recover payments made by the debtor to Baylor as fraudulent conveyances. During the course of the trial, Baylor attempted to use statements by Al Bell and Edward Pollack, both employees of the debtor, against the trustee. The district court refused to find that the statements of Bell and Pollack were admissions that could be used against the bankruptcy trustee as the successor-in-interest to the debtor. On appeal, Baylor argued that because Bell and Pollack were agents of the debtor, their statements were not hearsay, but rather admissions under Rule 801(d)(2). Baylor further argued that since the trustee was the successor-in-interest to the debtor the admissions could be used against the trustee. The Sixth Circuit disagreed stating that Rule 801(d)(2) represented a departure from common law and did not permit statements by predecessors-in-interest to be admissible against sucessors. The Sixth Circuit further noted that there was no “magic in privity” and “that acceptance of privity principles leads to dubious distinctions, particularly in bankruptcies.”37 37 Calhoun v. Baylor, 646 F.2d 1158, 1158–62 (6th Cir. 1981).
In In re Teltronics, the bankruptcy court for the Eastern District of New York, relying on Huff, also held that Rule 801(d)(2) expressly rejected privity as a ground for the admissibility of a debtor’s statement against a bankruptcy trustee. Anaconda-Ericsson, Inc. commenced an adversary proceeding against the debtor, Teltronics Services, Inc., seeking a declaration of its rights in certain property of the bankruptcy estate and relief from the automatic stay to enforce any such rights in the property. After appointment, the bankruptcy trustee served an answer to the complaint and asserted a counterclaim, under applicable non-bankruptcy law, for equitable subrogation and imposition of construction trust upon money and property already received by Anaconda-Ericsson. During the course of the trial, Anaconda-Ericsson attempted to offer into evidence certain conversations by and among various officers of the debtor, for the purpose of demonstrating the understanding of the parties as to the property in question. The bankruptcy trustee objected on hearsay grounds, arguing that the statements made by the debtor’s officers were not binding admissions on the trustee. Anaconda-Ericsson argued that the trustee was in privity with the debtor’s officers and that the Second Circuit long accepted privity as a basis for binding a trustee to statements made by a debtor prior to bankruptcy. The court noted that the admissibility of the statements was determined by Rule 801(d)(2) and found that the Federal Rules of Evidence expressly rejected privity as a ground of admissibility, and thus, for any statements formerly recognized as privity-based admissions to be admissible, they must fall within a recognized exception to the hearsay rule.38 38 Anaconda-Ericsson, Inc. v. Hessen (In re Teltronics Servs., Inc.), 29 B.R. 139, 143–44, 165 (Bankr. E.D.N.Y. 1983).
Finally, the bankruptcy court for the District of Utah, in In re Bedrock, also held that Rule 801(d)(2) rejects privity as a ground for the admissibility of statements against a bankruptcy trustee. In In re Bedrock, the debtor originally commenced an action against Weston Sleater in the Third District Court, Salt Lake City County, seeking to enforce two defaulted promissory notes executed by Sleater in favor of the debtor. After the filing of the bankruptcy petition, the chapter 7 trustee removed the action to the bankruptcy court. The chapter 7 trustee moved for summary judgment and also sought to have the declarations submitted by Sleater in opposition to the motion for summary judgment struck because they contained inadmissible hearsay. Sleater argued that the statements contained in the declarations were not hearsay pursuant to Rule 801(d)(2) as they were made by Rex Wheeler, an employee of the debtor and were attributable to the chapter 7 trustee by virtue of his succession to the interests of the debtor in the lawsuit. The court noted that the fact that the action was originally commenced by the debtor under state law, but is now one being prosecuted by a bankruptcy trustee added some interesting nuances to the application of Rule 801(d)(2). Specifically, the court noted that if the case were still pending in state court the statements of Wheeler would be non-hearsay under Rule 801(d)(2), but since the action was removed and was being prosecuted by the chapter 7 trustee, the question became one of privity and successor-in-interest. After considering these nuances, the court found that a trustee is not bound by the statements of a debtor or his agents because a trustee is not the debtor. Although a trustee does, in certain instances, succeed to the interests of a debtor, Rule 801(d)(2) does not include statements of predecessors-in-interest as statements by a party opponent and such statements cannot be used against a trustee.39 39 Jubber v. Sleater (In re Bedrock Mktg., LLC), 404 B.R. 929, 933, 935–36 (Bankr. D. Utah 2009).
Importantly, in both In re Teltronics and In re Bedrock the bankruptcy courts ultimately analyzed the statements at issue under the residual exception to the hearsay rule.40 40 Anaconda-Ericsson, Inc. v. Hessen (In re Teltronics Servs., Inc.), 29 B.R. 139, 165 (Bankr. E.D.N.Y. 1983); Jubber v. Sleater (In re Bedrock Mktg., LLC), 404 B.R. 929, 936 (Bankr. D. Utah 2009). In In re Teletronics, the bankruptcy court admitted the statements under the residual exception after determining that the officer’s statements were offered as evidence of a material fact, were more probative on the issues at the heart of the trial, and that the trustee was on notice that Anaconda-Ericsson intended to use the conversations at trial.41 41 Anaconda-Ericsson, Inc. v. Hessen (In re Teltronics Servs., Inc.), 29 B.R. 139, 165 (Bankr. E.D.N.Y. 1983) (analyzing the residual exception to the hearsay rule under former rule 803(24), which has been subsumed by and is substantially similar to the current rule found in Rule 807). Much like the In re Teltronics court, the In re Bedrock court found the appropriate test to determine whether the statement of a debtor could be used against a bankruptcy trustee was through Rule 807 and the residual exception to the hearsay rule. However, after employing the test set forth in Rule 807, the court determined that the test was not satisfied and thus the statements of the debtor could not be used against the trustee because the statements were hearsay.42 42 Jubber v. Sleater (In re Bedrock Mktg., LLC), 404 B.R. 929, 936 (Bankr. D. Utah 2009). As discussed more fully in Section VI, this Article proposes that the proper test for determining whether pre-petition statements of a debtor are appropriately admitted against a bankruptcy trustee is the standard set forth in Rule 807, and not an analysis based on privity of relationship.

Admitting Debtors’ Statements

The first court to hold contrary to the decisions of Huff, In re Teltronics, and In re Bedrock was the bankruptcy court for the District of New Jersey in In re Bayonne Medical Center. In In re Bayonne Medical Center, the liquidating trustee brought suit against various defendants under New Jersey law, seeking to enforce, among other things, pledge agreements made by the various defendants in favor of the debtor. The defendants sought to introduce the statements of the chairman of the board of the debtor to refute certain allegations made by the liquidating trustee in his various pleadings. The trustee objected to the admissibility of the statement as hearsay. The court ruled that the statements were admissible against the trustee, as the trustee could not avoid the admissions because he stood in the stead of the debtor. Because the cause of action derived directly from the debtor, the trustee was the successor-in-interest to the debtor and thus statements by the debtor’s officers were properly admitted against the trustee.43 43 Wilen v. Bayonne/Omni Dev., LLC (In re Bayonne Med. Ctr.), 2011 WL 5900960 *1, *3-11 (Bankr. D.N.J. Nov. 1, 2011)
Relying on the reasoning of In re Bayonne Medical Center, the bankruptcy court for the Middle District of Florida also found that when a cause of action derives directly from the debtor and not from the Bankruptcy Code, statements made by the debtor would be admissible against a bankruptcy trustee as admissions under Rule 801(d)(2). In In re Hadlick, the chapter 7 trustee brought suit against Timothy Grossman seeking, among other things, to collect the amounts due and owing the debtors under a promissory note executed by Grossman. Through the course of the trial, Grossman sought to introduce several statements of the debtors to refute the allegations asserted by the trustee in her complaint. The trustee objected to the admission of these statements on the basis of hearsay. Grossman argued that the statements were not hearsay under Rule 801(d)(2) because the trustee was the successor-in-interest to the debtors. The court noted that if this action were commenced by the debtors, all of the statements made by the debtors would be admissible under Rule 801(d)(2). Further, the court stated that a trustee, as a representative of a debtor’s estate, succeeds to the rights of a debtor and obtains standing to bring any suit that a debtor could have brought outside of bankruptcy. Additionally, the court stated that the trustee takes property subject to any and all restrictions that exist at the commencement of a bankruptcy case. Relying on these statements and the reasoning of In re Bayonne Medical Center, the bankruptcy court found that the statements of the debtor were admissible against the chapter 7 trustee because the trustee could not avoid the admissions as she stood in the shoes of the debtor and the action derived directly from the debtor.44 44 Jansen v. Grossman (In re Hadlick), Ch. 7 Case No. 8:09-bk-22442-MGW, Adv. No. 8:10-ap-01423-MGW, slip op. at 1, 3–8, 17–21 (Bankr. M.D. Fla. Jan. 19, 2012).

V. Potential Consequences

Both the In re Bayonne Medical Center and the In re Hadlick cases fail to acknowledge the explicit departure from the common-law tradition of the admissions-by-privity doctrine with the enactment of the Federal Rule of Evidence 801(d)(2). The drafters of Rule 801(d)(2) and Congress were well aware of both the common law acceptance of privity in determinations of hearsay and the arguments of Wigmore and Morgan. Rule 801(d)(2) represents a departure from the common law and an acceptance of the Morgan views on the inappropriateness of a privity analysis in determining whether a statement is or is not hearsay.45 45 2 Kenneth S. Broun, McCormick on Evidence § 260 (7th ed. 2013). Instead, both the In re Bayonne Medical Center and the In re Hadlick courts place great weight on the fact that that a trustee takes property subject to any and all restrictions at the commencement of the bankruptcy, and thus, privity properly has a place in determining whether or not evidence is hearsay.46 46 Wilen v. Bayonne/Omni Dev., LLC (In re Bayonne Med. Ctr.), 2011 WL 5900960 *11 (Bankr. D.N.J. Nov. 1, 2011); In re Hadlick, Ch. 7 Case No. 8:09-bk-22442-MGW, Adv. No. 8:10-ap-01423-MGW, slip op. at 17–21. A privity analysis offers no standards for testing credibility and trustworthiness of statements, and thus, should have no role in the determination of the admissibility of evidence. Permitting statements of a debtor to be used against a trustee solely based on privity provides greater control to debtors over causes of action that a trustee may pursue, and creates an unworkable burden for estate administration and sanction trap for trustees and their counsel.

Manipulation and Control of a Trustee’s Role

In relying only on privity as a basis for allowing the statements of a debtor to be used against a trustee, the courts in In re Bayonne Medical Center and In re Hadlick instill in debtors a greater control over the ability of a bankruptcy trustee to maintain causes of action, both arising out of bankruptcy law and arising outside of bankruptcy law. The premise of both the In re Bayonne Medical Center and In re Hadlick decisions is that statements of a debtor are admissible against a bankruptcy trustee solely because a trustee is the successor-in-interest to a debtor, and as such, a trustee takes property subject to any and all restrictions at the commencement of the bankruptcy. Following this logic, debtors’ pre-petition statements must attach to their causes of action, and accordingly trustees take those causes of actions subject to the debtors’ pre-petition statements.47 47 Wilen v. Bayonne/Omni Dev., LLC (In re Bayonne Med. Ctr.), 2011 WL 5900960 *11 (Bankr. D.N.J. Nov. 1, 2011); In re Hadlick, Ch. 7 Case No. 8:09-bk-22442-MGW, Adv. No. 8:10-ap-01423-MGW, slip op. at 17–21. These decisions permit debtors to manipulate what causes of action a bankruptcy trustee can pursue. If all that is necessary for a statement of a debtor to be used against a bankruptcy trustee is the fact that the bankruptcy trustee is in privity with the debtor, this permits a debtor to knowingly make pre-petition statements that will be detrimental to a trustee’s ability to maintain causes of action.
Specifically, let us look at constructively fraudulent transfers under section 548 of the Bankruptcy Code. A constructively fraudulent transfer occurs when a debtor does not receive reasonably equivalent value in a pre-bankruptcy transaction. Constructively fraudulent transfers are recoverable by a trustee pursuant to section 548(a)(1)(B) of the Bankruptcy Code.48 48 11 U.S.C. § 548(a)(1)(B) (2012). A trustee has the burden of establishing the elements of a constructively fraudulent transfer.49 49 Pension Transfer Corp. v. Fruehauf Trailer Corp. (In re Fruehauf Trailer Corp.), 444 F.3d 203, 211 (3d Cir. 2006); Bustamante v. Johnson (In re McConnell), 934 F.2d 662, 665 (5th Cir. 1991); Barber v. Golden Seed Co., 129 F.3d 382, 387 (7th Cir. 1997). A debtor, knowing that what it says will be admissible as an admission of a bankruptcy trustee, can ensure that a trustee will not be able to maintain a cause of action by making statements regarding the value received in exchange for the transfers, making statements about its solvency at the time of the transfer, and/or making statements regarding obligations that it never intended to incur or believed would be beyond its ability to pay. Additionally, since the Bankruptcy Code provides subsequent pre-bankruptcy transferees with a good faith defense, a debtor can make statements that could either establish or bolster affirmative defenses available to creditors.50 50 11 U.S.C. § 548(c) (2012). According to In re Bayonne Medical Center and In re Hadlick, regardless of the veracity of the statements, because the trustee is a successor to the debtor, the trustee is burdened by these statements.
The same can be said for preference actions under section 547(b) of the Bankruptcy Code. The purpose of section 547 is to create an even ground for all creditors. Accordingly, section 547(b) provides creditors with a mechanism for ensuring that a debtor cannot prefer one creditor over another during the ninety-day period prior to the filing of a bankruptcy petition.51 51 Bank of America, N.A. v. Mukamai (In re Egidi), 571 F.3d 1156, 1159–60 (11th Cir. 2009). With the In re Bayonne Medical Center and In re Hadlick decisions, debtors can controvert the purpose behind section 547 by making statements that effectively prefer certain creditors over others. A debtor, knowing that its statements will attach to these causes of action and bind trustees, can make statements to negate an element of a preference action or otherwise bolster the defenses of a creditor, thus eliminating the ability of a trustee to maintain a cause of action.
The same can be said for non-bankruptcy actions. Let us look at an action by a trustee to enforce a promissory note. Assume that John Smith executes and delivers to James Jones a promissory note. Mr. Smith makes a few payments under the note but fails to pay the note at maturity. Mr. Jones is worried that he may have to file bankruptcy but wants to ensure that Mr. Smith is protected. About six months prior to his bankruptcy filing, Mr. Jones says to Mr. Smith “Don’t worry about the note, I know that you haven’t been able to make all the payments but you can have another five years to pay it.” Mr. Jones then files bankruptcy and his trustee wants to pursue an action on the defaulted promissory note. Does this statement negate the default? Does it matter that the statement was made to protect Mr. Smith in the event of a bankruptcy filing? Should this statement be permitted to be used against the bankruptcy trustee solely because it was made? According to In re Bayonne Medical Center and In re Hadlick, there is no room for questions about intent or motives of the debtor because the trustee takes such a cause of action with all statements of the debtor attaching thereto. Thus, it would appear that Mr. Jones’ statement could be used to negate the default under the promissory note and the bankruptcy trustee would not be able to maintain a cause of action against Mr. Smith.
These decisions remove the ability of a bankruptcy trustee to effectively administer all assets of a bankruptcy estate. Instead, the power is with debtors to manipulate which, if any, causes of action can be pursued by a bankruptcy trustee.

Unworkable Burdens and Potential Sanctions

The decisions of In re Bayonne Medical Center and In re Hadlick place an additional burden on bankruptcy trustees and their counsel when determining whether or not to pursue a cause of action. In addition to investigating the facts and evidence to support a cause of action, a bankruptcy trustee and their counsel must now also ensure that he/she has investigated and is aware of each and every statement made by the debtor that may impact a specific cause of action. Failure to do so may subject a bankruptcy trustee and their attorney to sanctions. With this additional burden and risk of sanctions, bankruptcy trustees will be less likely to pursue causes of action for the benefit of a bankruptcy estate.
Investigating whether a debtor has made any statements that impact the ability of a trustee to bring a cause of action is a daunting undertaking. How far back must a bankruptcy trustee investigate? What exactly constitutes a proper investigation? For example, is it sufficient for a bankruptcy trustee to generally inquire whether the debtor made any statements at any time that may impact the trustee’s ability to bring a cause of action, or must the bankruptcy trustee depose the debtor when he or she becomes aware of a potential cause of action? If the debtor answers in the negative is that the end of the inquiry, or does the trustee have an affirmative duty to investigate further? Neither In re Bayonne Medical Center nor In re Hadlick shed any light on these very important questions. Depending on the answers, it may prove cost prohibitive for a bankruptcy trustee to pursue a cause of action, in that it may cost more to undertake the investigation then the potential recovery under the cause of action.
Additionally, not every debtor is available for questioning by a bankruptcy trustee. If a debtor dies during the pendency of a bankruptcy or if the bankruptcy is instituted through use of an involuntary petition, a trustee may have no ability to investigate whether the debtor has made any statements that would impact his or her ability to bring a cause of action on behalf of the bankruptcy estate.
Perhaps the most important question left unanswered by both the In re Bayonne Medical Center and the In re Hadlick decisions is what are the potential consequences to a trustee and their attorneys if this extensive investigation is not sufficiently performed or cannot otherwise be performed? If the statements of a debtor are attributable to a trustee because of privity, then a trustee and counsel should have serious concerns about running afoul of Federal Rule of Bankruptcy Procedure 9011 when filing any cause of action on behalf of a bankruptcy estate.52 52 References to the Federal Rules of Bankruptcy Procedure are referred to herein as FRBP. FRBP 9011 provides, that by filing a complaint, the person signing the complaint is certifying to the court that the claim or other legal contention being presented is warranted by existing law.53 53 Fed. R. Bankr. P. 9011(b)(2). A bankruptcy trustee and counsel will need to make sure that the debtor has not made any statement that would negate the cause of action being pursued; otherwise, the complaint may not be warranted under existing law and might expose the trustee and counsel to sanctions.

VI. The Proper Approach

With the enactment of Rule 801(d)(2), privity should have no role in the determination of the admissibility of evidence against a bankruptcy trustee. As Professor Morgan noted, privity offers no standards for testing credibility and trustworthiness.54 54 Edmund M. Morgan, Admissions, 12 Wash. L. Rev. 181, 202 (1937). Further, as can be seen with the potential implications of the decisions in In re Bayonne Medical Center and In re Hadlick, privity does nothing more than create uncertainty for bankruptcy trustees and provide potential avenues for abuse of the Bankruptcy Code by debtors. Statements of a debtor should never be admissible against a trustee solely because of privity. Rather, as set forth by the courts in Huff v. White Motor Corporation, In re Teltronics, and In re Bedrock, the appropriate test for determining whether such statements should be admissible is under the residual exception to the hearsay rule now contained in Rule 807.
Before a statement is admitted as an exception to the hearsay rule, Rule 807 requires: (1) the statement to have the equivalent circumstantial guarantees of trustworthiness; (2) the statement to be offered as evidence of a material fact; (3) the statement to be more probative than any other evidence that the proponent can obtain through reasonable efforts; (4) the statement to best serve the interests of justice; and (5) the proponent give the adverse party reasonable notice of intent to offer the statement and its particulars.55 55 Fed. R. Evid. 807. Since the second and fourth requirements merely reaffirm that evidence must be relevant and serve the interests of justice,56 56 Robinson v. Shapiro, 646 F.2d 734, 743 (2d Cir. 1981). out of the five requirements, courts look primarily to the trustworthiness of the statement, the necessity of the statement, and the notice requirement contained in the Rule.57 57 Huff v. White Motor Corp., 609 F.2d 286, 286–91 (7th Cir. 1979).
The trustworthiness of the statement tends to be the most important factor under the Rule 807 analysis.58 58 Huff v. White Motor Corp., 609 F.2d 286, 292 (7th Cir. 1979). In determining the trustworthiness of statements, courts generally examine whether the declarant had a motivation to speak truthfully or otherwise;59 59 Huff v. White Motor Corp., 609 F.2d 286, 292 (7th Cir. 1979); Page v. Barko Hydraulics, 673 F.2d 134, 140 (5th Cir. 1982); United States v. Lentz, 282 F. Supp. 2d 399, 425–26(E.D. Va. 2002); United States v. Bryce, 208 F.3d 346, 351 (2d Cir. 1999). how spontaneous the statement was;60 60 United States v. Ellis, 935 F.2d 385, 394 (1st Cir. 1991). the relationship between the declarant and the person to whom the statement was made;61 61 United States v. Vretta, 790 F.2d 651, 659 (7th Cir. 1986). and whether the declarant has recanted or reaffirmed the statement.62 62 United States v. Barlow, 693 F.2d 954 (6th Cir. 1982); United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976). These factors permit courts to examine the motive and intent of the declarant.63 63 Huff v. White Motor Corp., 609 F.2d 286, 292–94 (7th Cir. 1979) Next, courts look to whether the statement is “more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.”64 64 Fed. R. Evid. 807(a)(3). This is often interpreted as a general necessity requirement.65 65 United States v. Mathis, 559 F.2d 294, 299 (5th Cir. 1977). The necessity factor permits a court to evaluate the need for the statement against the costs and ability to obtain alternative evidence.66 66 United States v. Simmons, 773 F.2d 1455, 1459 (4th Cir. 1985); Federal Trade Commission v. Figgie Int’l Inc., 994 F.2d 595, 608 (9th Cir. 1993). The last important requirement of the test set forth in Rule 807 is the notice requirement. Rule 807(b) requires that notice be given sufficiently in advance of trial to an adverse party of the intent to use a statement and the particulars of a statement that would otherwise be considered hearsay.67 67 Fed. R. Evid. 807(b). This ensures that the adverse party has the opportunity to prepare for and meet the hearsay evidence.68 68 Huff v. White Motor Corp., 609 F.2d 286, 295 (7th Cir. 1979); Anaconda-Ericsson, Inc. v. Hessen (In re Teltronics Servs., Inc.), 29 B.R. 139, 165 (Bankr. E.D.N.Y. 1983).
The test of Rule 807 does not rely upon the relationship between a debtor and a bankruptcy trustee to determine whether evidence will be admissible against the bankruptcy trustee. Instead, Rule 807 sets forth a clear and concise test that must be met before any statements of a debtor will be admissible against a trustee. This ensures that a debtor will not have the ability to dictate which causes of action a trustee may pursue and avoids the unworkable burden for estate administration that may occur as a result of the In re Bayonne Medical Center and In re Hadlick decisions.
Examining the trustworthiness factors, it is easy to see that these factors would play an important role when determining whether the statements of a debtor should be attributable to a bankruptcy trustee. Applying these factors to the statements of a debtor allows a court to determine the intent and motives of a debtor in making the statement. Additionally, these factors allow a court to test the veracity of a debtor’s statement. These factors ensure that a debtor will not be able to make statements that negate a trustee’s ability to bring a cause of action or otherwise provide or bolster a defense to a creditor or defendant. These factors also ensure that creditors do not attempt to coerce debtors into making statements that would otherwise undermine a trustee’s ability to maintain a cause of action against that creditor. Turning to the necessity requirement, the court again has the ability to weigh the importance of a debtor’s statement versus the cost of obtaining other evidence. Finally, the notice requirement of the rule ensures that a trustee and their counsel will have sufficient notice of the statements made by a debtor and the intended use of those statements by a defendant. With the notice requirement, there will be no surprises for a bankruptcy trustee or their counsel. This allows a trustee to have the ability to investigate the specific statement, rather than attempting to uncover each and every statement made by the debtor, and attempt to find evidence to contradict the statement or to otherwise prepare for and meet the evidence.

VII. Conclusion

Privity should not be used as a basis for the admissibility of evidence under the hearsay rule. Relying on privity may lead to dubious consequences. This is particularly true in the context of debtors and bankruptcy trustees. Permitting statements of a debtor to be used against a trustee solely based on privity provides greater control to debtors over causes of action that a trustee may pursue for the benefit of the estate. Additionally, privity-based admissions create an unworkable burden for estate administration and sanction trap for trustees and their counsel. Before any statement of a debtor is admitted against a bankruptcy trustee under the hearsay rule, these statements should be tested under Rule 807. Rule 807 sets forth a clear and concise test that will ensure that a debtor will not have the ability to dictate which causes of action a trustee may pursue and avoids the unworkable burden for estate administration that may occur as a result of the In re Bayonne Medical Center and In re Hadlick decisions.

Footnotes

1Tiffany A. DiIorio is an attorney with the law firm of Adams and Reese LLP, in the firm’s Tampa office. Ms. DiIorio is a member of the firm’s bankruptcy and creditors’ rights practice group, with an emphasis on trustee representation.
5Reference herein to the “Rule” or “Rules” shall mean the Federal Rules of Evidence or the specific Rule of Evidence identified therein.
711 U.S.C. § 701 (2012); 11 U.S.C. § 704 (2012).
811 U.S.C. § 1104(a) (2012).
9Corporate Assets, Inc. v. Paloian, 368 F.3d 761, 767 (7th Cir. 2004).
10Hoffman v. Hartley (In re Hartley), 483 B.R. 700, 704 (Bankr. W.D. Wis. 2012).
11Dawson v. Thomas (In re Dawson), 411 B.R. 1, 21 (Bankr. D.D.C. 2008).
12Moneymaker v. Coben (In re Eisen), 31 F.3d 1447, 1451 (9th Cir. 1994).
1311 U.S.C. § 544 (2012)
1411 U.S.C. § 545 (2012)
1511 U.S.C. § 547 (2012).
1611 U.S.C. § 548 (2012).
1711 U.S.C. § 549 (2012).
18See generally, Fed. R. Bankr. P. 7001.
19The Honorable Christopher M. Klein, Bankruptcy Rules Made Easy (2001): A Guide to the Federal Rules of Civil Procedure that Apply in Bankruptcy, 75 Am. Bankr. L.J. 35, 38 (Winter 2001).
20See Fed. R. Bankr. P. 9017; Boone v. Barnes (In re Barnes), 266 B.R. 397, 403 (8th Cir. BAP 2001).
23Wilen v. Bayonne/Omni Dev., LLC (In re Bayonne Med. Ctr.), 2011 WL 5900960 *1 (Bankr. D.N.J. Nov. 1, 2011); Jansen v. Grossman (In re Hadlick), Ch. 7 Case No. 8:09-bk-22442-MGW, Adv. No. 8:10-ap-01423-MGW, slip op. at 1 (Bankr. M.D. Fla. Jan. 19, 2012).
24Huff v. White Motor Corp., 609 F.2d 286, 290–91 (7th Cir. 1979).
252 Kenneth S. Broun, McCormick on Evidence § 260 (7th ed. 2013).
264 John Henry Wigmore, Evidence in Trials at Common Law §§ 1080–1087 (Chadbourn rev. 1972); Edmund M. Morgan, Admissions, 12 Wash. L. Rev. 181 (1937); Edmund M. Morgan, The Rationale of Vicarious Admissions, 42 Harv. L. Rev. 462(1929).
274 John Henry Wigmore, Evidence in Trials at Common Law §§ 1080–1087 (Chadbourn rev. 1972).
284 John Henry Wigmore, Evidence in Trials at Common Law §§ 1080–1087 (Chadbourn rev. 1972).
292 Kenneth S. Broun, McCormick on Evidence § 260 (7th ed. 2013).
30Edmund M. Morgan, Admissions, 12 Wash. L. Rev. 181, 202 (1937).
31119 Cong. Rec. 3247 (Feb. 5, 1973).
322 Kenneth S. Broun, McCormick on Evidence § 260 (7th ed. 2013).
33Act to Establish the Federal Rules of Evidence, Pub. L. No. 93–595 (codified under various sections of 28 U.S.C.).
34Huff v. White Motor Corp., 609 F.2d 286, 290–91 (7th Cir. 1979).
35Calhoun v. Baylor, 646 F.2d 1158 (6th Cir. 1981); Anaconda-Ericsson, Inc. v. Hessen (In re Teltronics Servs., Inc.), 29 B.R. 139 (Bankr. E.D.N.Y. 1983); Jubber v. Sleater (In re Bedrock Mktg., LLC), 404 B.R. 929 (Bankr. D. Utah 2009).
36Wilen v. Bayonne/Omni Dev., LLC (In re Bayonne Med. Ctr.), 2011 WL 5900960 *1 (Bankr. D.N.J. Nov. 1, 2011); Jansen v. Grossman (In re Hadlick), Ch. 7 Case No. 8:09-bk-22442-MGW, Adv. No. 8:10-ap-01423-MGW, slip op. at 1 (Bankr. M.D. Fla. Jan. 19, 2012).
37Calhoun v. Baylor, 646 F.2d 1158, 1158–62 (6th Cir. 1981).
38Anaconda-Ericsson, Inc. v. Hessen (In re Teltronics Servs., Inc.), 29 B.R. 139, 143–44, 165 (Bankr. E.D.N.Y. 1983).
39Jubber v. Sleater (In re Bedrock Mktg., LLC), 404 B.R. 929, 933, 935–36 (Bankr. D. Utah 2009).
40Anaconda-Ericsson, Inc. v. Hessen (In re Teltronics Servs., Inc.), 29 B.R. 139, 165 (Bankr. E.D.N.Y. 1983); Jubber v. Sleater (In re Bedrock Mktg., LLC), 404 B.R. 929, 936 (Bankr. D. Utah 2009).
41Anaconda-Ericsson, Inc. v. Hessen (In re Teltronics Servs., Inc.), 29 B.R. 139, 165 (Bankr. E.D.N.Y. 1983) (analyzing the residual exception to the hearsay rule under former rule 803(24), which has been subsumed by and is substantially similar to the current rule found in Rule 807).
42Jubber v. Sleater (In re Bedrock Mktg., LLC), 404 B.R. 929, 936 (Bankr. D. Utah 2009).
43Wilen v. Bayonne/Omni Dev., LLC (In re Bayonne Med. Ctr.), 2011 WL 5900960 *1, *3-11 (Bankr. D.N.J. Nov. 1, 2011)
44Jansen v. Grossman (In re Hadlick), Ch. 7 Case No. 8:09-bk-22442-MGW, Adv. No. 8:10-ap-01423-MGW, slip op. at 1, 3–8, 17–21 (Bankr. M.D. Fla. Jan. 19, 2012).
452 Kenneth S. Broun, McCormick on Evidence § 260 (7th ed. 2013).
46Wilen v. Bayonne/Omni Dev., LLC (In re Bayonne Med. Ctr.), 2011 WL 5900960 *11 (Bankr. D.N.J. Nov. 1, 2011); In re Hadlick, Ch. 7 Case No. 8:09-bk-22442-MGW, Adv. No. 8:10-ap-01423-MGW, slip op. at 17–21.
47Wilen v. Bayonne/Omni Dev., LLC (In re Bayonne Med. Ctr.), 2011 WL 5900960 *11 (Bankr. D.N.J. Nov. 1, 2011); In re Hadlick, Ch. 7 Case No. 8:09-bk-22442-MGW, Adv. No. 8:10-ap-01423-MGW, slip op. at 17–21.
49Pension Transfer Corp. v. Fruehauf Trailer Corp. (In re Fruehauf Trailer Corp.), 444 F.3d 203, 211 (3d Cir. 2006); Bustamante v. Johnson (In re McConnell), 934 F.2d 662, 665 (5th Cir. 1991); Barber v. Golden Seed Co., 129 F.3d 382, 387 (7th Cir. 1997).
5011 U.S.C. § 548(c) (2012).
51Bank of America, N.A. v. Mukamai (In re Egidi), 571 F.3d 1156, 1159–60 (11th Cir. 2009).
52References to the Federal Rules of Bankruptcy Procedure are referred to herein as FRBP.
54Edmund M. Morgan, Admissions, 12 Wash. L. Rev. 181, 202 (1937).
56Robinson v. Shapiro, 646 F.2d 734, 743 (2d Cir. 1981).
57Huff v. White Motor Corp., 609 F.2d 286, 286–91 (7th Cir. 1979).
58Huff v. White Motor Corp., 609 F.2d 286, 292 (7th Cir. 1979).
59Huff v. White Motor Corp., 609 F.2d 286, 292 (7th Cir. 1979); Page v. Barko Hydraulics, 673 F.2d 134, 140 (5th Cir. 1982); United States v. Lentz, 282 F. Supp. 2d 399, 425–26(E.D. Va. 2002); United States v. Bryce, 208 F.3d 346, 351 (2d Cir. 1999).
60United States v. Ellis, 935 F.2d 385, 394 (1st Cir. 1991).
61United States v. Vretta, 790 F.2d 651, 659 (7th Cir. 1986).
62United States v. Barlow, 693 F.2d 954 (6th Cir. 1982); United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976).
63Huff v. White Motor Corp., 609 F.2d 286, 292–94 (7th Cir. 1979)
65United States v. Mathis, 559 F.2d 294, 299 (5th Cir. 1977).
66United States v. Simmons, 773 F.2d 1455, 1459 (4th Cir. 1985); Federal Trade Commission v. Figgie Int’l Inc., 994 F.2d 595, 608 (9th Cir. 1993).
68Huff v. White Motor Corp., 609 F.2d 286, 295 (7th Cir. 1979); Anaconda-Ericsson, Inc. v. Hessen (In re Teltronics Servs., Inc.), 29 B.R. 139, 165 (Bankr. E.D.N.Y. 1983).

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The Behavioral Psychology of Appellate Persuasion http://www2.stetson.edu/advocacy-journal/the-behavioral-psychology-of-appellate-persuasion/ http://www2.stetson.edu/advocacy-journal/the-behavioral-psychology-of-appellate-persuasion/#comments Wed, 08 Jan 2014 02:22:44 +0000 http://www2.stetson.edu/advocacy-journal/?p=261

James D. Ridgway1 1 Professorial Lecturer in Law, George Washington University Law School; Chief Counsel for Policy and Procedure, Board of Veterans’ Appeals. Professor Ridgway regularly argued appellate cases as an appellate prosecutor in Chicago, clerked for two different members of the U.S. Court of Appeals for Veterans Claims, and was a finalist in the American Forensics Association National Individual Events Tournament. All the views expressed in his writings are personal and not official positions of any employer past or present.

1 Stetson J. Advoc. & L. 83 (2014)

I. Introduction

What is the goal of appellate advocacy? The novice answer is “to win the case.” The expert answer is “to have the court say exactly what you want.” Leading an appellate court to say exactly what you want is a difficult task, but your odds are much better if you understand how appellate decisions are made and precisely how to maximize your impact on the decision-making process.
As will be seen below, there are any number of fields in which insights from behavioral psychology research have been applied to create powerful new tools to improve performance. Behavioral psychology research focuses on the way in which human beings have evolved to think and make decisions. This same research is incredibly important in recognizing the best tools to be a highly effective appellate advocate.
This article will use such research to work backward from how appellate decisions are made to how oral argument, briefing, and argument design can have the maximum impact on the decision makers. Appellate judges are human beings who have the same basic cognitive processes as any others. Understanding these processes is the key to understanding how to best utilize the few minutes of argument and few pages of briefing that you have to affect what the decision in a case will say.
Part I will start at the end by reviewing how decisions are made. Part II will move a step backward to discuss how oral argument — the step closest to the decision — should be structured. Part III turns to the brief and how it sets up the oral argument. Part IV focuses at the beginning of the process by examining how to find the most powerful arguments upon which to build your case. Finally, Part V takes the insights of behavioral biology and turns to the issue of how we can improve our advocacy skills.

II. Putting Words in Their Mouths

At first, an appellate court may seem like a black box. Briefs and arguments go in; months later, a decision comes out. However, it is not hard to find a description of how decisions are made.2 2 See, e.g., Robert A. Leflar, The Multi-Judge Decisional Process, 42 Md. L. Rev. 722 (1983). Judges in most courts freely explain that after argument, they retire to a conference room where they discuss the case they heard and make a preliminary decision. Commonly, the junior judge speaks first, and says in five minutes or less what he or she thinks the case is about and how it should be decided. The other judges then speak in turn, stating their additional points of concern and possible disagreement. At the end, a basic decision is reached, and the author begins to work on an opinion that follows the agreed-upon outline.
The details vary by court, and there is much that happens between the conference and the issuance of the opinion, but the conference is generally where the decision is made. Therefore, the essence of effective advocacy is influencing the conversation that occurs in the conference room after oral argument. That is exactly where the case is won or lost, and where its focus is determined.
To influence that conversation requires two elements. First, the argument presented must be designed based upon how human beings make such decisions. Second, the argument must then be packaged so that it has the maximum impact on the conversation. Quite literally, the goal of this design and packaging is to put words into the mouths of the judges who will dominate the conversation of how the case is decided.

A. How Appellate Decisions Are Made

How do human beings make decisions? They simplify. The mental shortcuts we use to unconsciously reduce complex problems to more manageable ones are called “heuristics;” and they are one of the most important aspects of cognition to understand when it comes to decision making.3 3 See Daniel Kahneman, Thinking, Fast and Slow (2011). Despite our best intentions, it is utterly impossible to make every decision by carefully weighing every relevant fact. Some problems are simply too complex and life is far, far too short to think about every choice we have. In evolutionary terms, a large portion of the evolution of intelligence has been learning to make quick decisions that are probably right in order to capture prey or escape predators, rather than starving or being eaten while making up our minds searching for the perfect solution. Of course, we don’t always think this way, but simplification in order to make a decision and move on is deeply embedded in human decision making, especially when working under time pressure.4 4 See, e.g., Jörg Rieskamp & Ulrich Hoffrage, Inferences Under Time Pressure: How Opportunity Costs Affect Strategy Selection, 127 Acta Psychologica 258 (2008).
Appellate decisions themselves are clearly exercises in simplification. They may be complex in many ways, but, ultimately, one side wins and the other loses. Before that, pages or volumes of messy evidence and complex laws are pared down to manageable issues, until they can be resolved by simple rules or the application of multi-part tests. It is no accident that legal opinions are reduced to parentheticals. The essence of the law-giving function of appellate courts is to use complex cases to announce simple rules that guide behavior and make future cases easy to resolve. Deciding on the simple propositions for which a case will stand (or that already control the case) is what happens in the conference where the judges decide the case.

B. Influencing the Decision-Making Process

So if the conference is about simplifying the case into a straightforward holding, how do you influence its outcome? As noted above, the conference tends to begin with one judge giving his or her version of how to simplify the case. The goal of briefing and argument is to suggest the simplified version of the case that will be first proposed at the conference, and to have the other judges agree. If the first judge to speak in the conference says exactly what you want him or her to say and the others agree, then you will obtain the result you want.
First, though, what does “simplify” really mean? Again, the answer comes from evolution. A classic study from the 1950s showed that the maximum number of items that a person can remember is about seven.5 5 George A. Miller, The Magical Number Seven, Plus or Minus Two: Some Limits on Our Capacity for Processing Information, 63 Psychol. Rev. 81 (1956). Once the list becomes longer than seven, it is likely that at least one of the items will be forgotten. Indeed, follow-on research showed that the actual number may be closer to only four for more complex items.6 6 See, e.g., Nelson Cowan, The Magical Number 4 in Short-Term Memory: A Reconsideration of Mental Storage Capacity, 24 Behavioral & Brain Sci. 87 (2001). A simple case is one that has been reduced to a manageable number propositions — seven or (ideally) fewer. In practical terms, then, a case needs to be reduced to seven or fewer simple sentences. Those are the sentences that you want the first judge to say when the conference begins.
What are in those sentences? They should stand by themselves. You should be able to tell them to any attorney who knows nothing about the case and have him or her agreeing that your argument makes sense. You need the key facts, the controlling principle of law, and the essential application in the case at hand. Moreover, the controlling principle is the parenthetical that you want the court to feature in its opinion. Accordingly, those sentences need to be very articulate. They need to be easy to say and rhythmic enough to roll off the tongue.
Of course, cases do not usually look that simple at the outset. Rather, it is the job of the advocate to make them that simple. The way cases become simple is packaging the component parts into their own simple packages. The net result are cognitively manageable chunks that lead to the desired end result. Therefore, each of the final propositions may be built upon up to seven subpropositions. In turn, those subpropositions might be unpacked into up to seven more. Constructing an argument is about placing propositions into prioritized tiers, such that each component is not too complex.
In simple terms, you are building a Roman-numeral outline with no section or subsection going past either seven or the letter “g.” The top-level propositions are the ones that you want to be used in the conference conversation. The rest are merely leading to the ones that matter most. In the majority of cases, judges will have particular concerns or issues that matter to them. Your outline is your guide to how those concerns either lead back to your central proposition or are simply not relevant to the outcome of the case.
In effect, influencing appellate decision making is about creating the simplest possible path to the outcome you want, and preparing the simplest trails back to that path for the judges who want to veer off course. Keeping the path simple involves whittling each level of argument down to as few essential points as possible and demoting everything else to supporting points.

III. The Conversation Before the Conversation

The last bit of advocacy that occurs before the conference is the oral argument. This is your final chance to influence the conversation before it takes place. The secret to oral argument is that it is your chance to pretend that you are the first judge speaking at the conference. Your goal is to focus the judges on the simple propositions that you want to control their deliberations. People remember best what you say first, what you say last, and what you say most often. The first and last items in a list are more easily recalled than those in the middle. The tendency to remember the first items is the “primacy effect,” and the tendency to remember the last items is the “recency effect.”7 7 See, e.g., D.A. Brodie & B.B. Murdock, Effects of Presentation Time on Nominal and Functional Serial Position Curves in Free Recall, 16 J. of Verbal Learning & Verbal Behavior 185 (1977). Repeatedly exposing a person to something not only improves recall of that item, but also leads them to be more positively disposed to it. This is called the “familiarity” principle or the “mere-exposure” effect.8 8 R.F. Bornstein, Exposure and Affect: Overview and Meta-Analysis of Research, 1968–1987, 106 Psychol. Bull. 265 (1989). Therefore, you should structure your argument to make your central propositions the beginning and ending of your argument, and to walk each question back to them.

A. Oral Argument Strategy

A frequent mistake in oral argument it to clutter the central points with more than needs to be said. If you were to receive no questions at all, then your entire presentation should be no more than fourteen simple sentences. Ideally, it should be even fewer. You want to state the seven or fewer sentences that are your central propositions. You then want to state the seven or fewer sentences that identify why the opposing argument is incorrect. If there are no questions by that point, then you are done and you can sit down, even if you have spoken for fewer than five minutes. Saying anything more unnecessarily presents the judges with more propositions than can easily be recalled, and runs the risk that a central proposition will be displaced by a secondary or tertiary point. There is no requirement to use all the time allotted at oral argument. Judges are busy and appreciate brevity.
Of course, you should not be in a hurry to sit down. In most cases, judges will have questions (if only because some judges feel obligated to ask something). The goal of answering a question is to answer it directly, and then show either that the answer leads back to one of your central points or that the answer is not relevant to the outcome of the case at hand because it is disconnected from one of your central points. To the extent that a question is focused on one of your opponent’s points, answer the question and walk it back to the central reason why your opponent’s argument is mistaken. Questions must be answered, but the key tactic is to use your answers to make sure that your central propositions are the statements that the judges hear most often.
Taking a question and walking back to one of your central points takes practice. A good technique to use is to take the Roman-numeral outline of your argument, copy it, cut it up into individual points, and throw those pieces of paper in a bag. Then you can pull out points and practice linking your answer to a specific issue back to your top-line focus, just as if you had received a question on that point. Also practice answering different questions about the same point. The goal is to identify the phrases you want to have handy for the subpoints that allow you to most naturally link back to your central thesis.
If you have time for a brief conclusion, finish with your central propositions. If you have more than a couple, you probably will not be able to repeat them all. Focus on the parenthetical or two that you are trying to make the heart of the court’s opinion. Some of your central propositions are restatements of the relevant facts, and those are usually less important to reinforce. The last words that you say are the ones that are most important to have used in the conference that will occur afterward. Ultimately, your strategy is to use repetition to focus the conversation.

B. Oral Argument Preparation and Execution

Having a strategy is very important, but you must also be ready to execute it. Preparing for oral argument is polishing and practicing all of your points so that they roll off your tongue. You never want to be grasping for a way to articulate a point. Your words should come naturally because they are easy to say and ingrained in your mind. To ingrain them, you have to practice them out loud. You use different parts of your brain when you speak compared to when you just think about phrases.9 9 See, e.g., Peter Hagoort & Willem J. M. Levelt, The Speaking Brain, Sci. 372 (Oct. 16, 2009). Like an actor rehearsing your lines, you need to drill them into your head by saying them out loud to the point that they come unbidden when you need them.
Repeated testing and practice of the phrases not only ensures that the phrases sound natural, it also frees up cognitive energy during oral argument. The more mental energy you spend at argument searching for phrases or reviewing your notes, the less you have to think through the questions being asked and to watch the bench for reactions to your statements. A judge may question something you say without uttering a word. Often you can tell from a facial reaction that a judge has doubts about something you have said. If you are paying attention, you can then unpack that proposition into its subpropositions without being asked.
Paying attention to the bench may also give you a chance to reinforce the phrases that are hitting home. If you are looking at the court instead of your notes, you may notice a judge start to write down something you are saying. If that is a key proposition or the answer to a hot question, it can be quite effective to say, “And I will repeat that because it is an important point.” If you give the judge the time to write down your key proposition when you see him or her trying to do so, you dramatically increase your chances that the phrase will be central to the discussion that occurs afterward. Moreover, letting the judge first complete his or her note taking makes it easier for the judge to follow you when you move to the next proposition.
Ultimately, if you structure and deliver your argument correctly, then the conference should sound very similar to your conversation with the panel. That conversation will be dominated by the key phrases you have repeated, and those phrases will then make their way into the opinion.

IV. Planning Ahead

Of course, you should be thinking about the structure and delivery of your argument long before it is even scheduled. A good argument reinforces the propositions advanced in the brief. You should be quite content to have a minimal oral argument presentation because your brief stands on its own. Oral argument is where you let the court tell you which parts of your brief were less than fully effective. Therefore, your oral argument is in fact merely an extension of your brief.

A. Brief-Writing Strategy

The first step to drafting an effective brief is to figure out the fourteen or fewer sentences that you would say if you were to receive no questions at oral argument. These sentences should not come as a surprise. Judges use the briefs to prepare for oral argument, and so you want your argument to build on the same propositions that you have already established. Of course, in many cases, decisions are issued without any oral argument. Therefore, you need to control the conversation as if the decision will be made based upon your brief alone. However, you actually have the opportunity to do even more.
Brief writing is where you attempt to put words, phrases, sentences, and even whole paragraphs into the final opinion. Ultimately, the court will produce a written opinion. At oral argument, you must focus on the key phrases that you want to dominate that opinion. However, you do not have enough time there to say everything or even to go into complex issues in as much detail as you might like. Inevitably, the opinion the court produces will be somewhat broader than the discussions in either the courtroom or the conference room. The principle of influencing the writing is the same as influencing the conversation: Do the work for the judge.
A well written brief has large chunks that could be cut directly from the body and pasted into the final decision. Writing a brief in the style of an opinion has many positive effects. First, you create the possibility that key passages will actually be cut and pasted from the brief. It almost goes without saying, but if your language and tone could not plausibly be used in an opinion, then you have sacrificed the chance to have the most direct impact on its content. More importantly, if you write your briefs in the more measured style of an opinion, then you establish an empathic connection with the judges by writing in their style. Human beings are more comfortable with patterns they recognize, and naturally tend to trust those who communicate in the forms most similar to their own. The tendency of human beings to shift their communication styles to be more similar to the audience to gain trust and acceptance is called “Communication accommodation theory.”10 10 See Howard Giles & Philip Smith, Accommodation Theory: Optimal Levels of Convergence, in Howard Giles & Robert N. St. Clair, Lang. and Soc. Psychol. (1979). A common language subliminally signals that you are part of the same group and builds trust. Human beings naturally favor those that they perceive to be part of their in-group.11 11 See, e.g., Elliot Aronson et al., Soc. Psychol. (8th ed. 2012).
Conversely, when you use a structure or tone that is markedly different from the judicial tone, you force the judge to mentally translate the words you have written into words he or she could actually write. All sorts of problems can occur when this happens. Of course, the judge may simply choose different words than you would have preferred and produce an opinion that muddies the clear parenthetical that you were trying to place into the opinion. Even worse, your words could require more mental energy than the judge has at that moment, such that the translation does not occur at all.12 12 See, e.g., I Think It’s Time We Broke For Lunch . . . Court Rulings Depend Partly on When the Judge Last Had a Snack, The Economist (Apr. 14, 2011). In other words, a good brief reduces the burden on the judge of writing the opinion as much as possible.
Once your brief is targeted at allowing the court to copy directly from it, you can then further leverage this advantage. Before oral argument, you should clearly identify the pages that are most ripe for the plucking, particularly when it comes to complex analyses that may not be fully explored during argument. If the argument turns to one of these points, you can begin your answer with, “I analyze this issue more thoroughly at pages X & Y of my brief, but the essential point to remember is this . . . .” If you tell the judge exactly where to find your full argument, the judge may well turn to that section during the argument and post-argument conference. This will make it even easier for you to turn a judge’s agreement with your essential points at argument into the precise phrases you want to see in the opinion.
Ultimately, the more your brief can lower the transaction costs of adopting your argument,13 13 Of course, the problem of transaction costs preventing parties from reaching ideal outcomes was famously described by Ronald Coase. Ronald Coase, The Problem of Social Cost, 3 J.L. & Econ. 1 (1960). the more likely the court will liberally borrow from it. This maximizes the chances that you will get the specific result you want.

B. Brief-Writing Execution

A well written brief utilizes a host of more subtle techniques to further support the central goal of selling the specific analysis that you want the court to use. Each of these techniques maximizes the brief’s impact and leads the judge toward the ultimate, desired outcome.

Structure

An important structural aspect to remember is that brief writing is not fiction writing. A surprise twist at the end is not effective. It leaves the judge wondering how the logic of your argument could really make sense, when it should be clear from the beginning where your argument is going and how it will get there.
A common mistake is to state the issue in a generic way in the question presented and the section headings, rather than letting the judge know where the argument is going. This is a major problem because it increases the mental energy necessary to understand your brief. There is an old brain teaser that I first heard in grade school, which goes like this: “Suppose you are a school bus driver. At the first stop two children get on. At the second stop, three children get on. At the third stop, five children get on, which is one fewer than normal. At the fourth stop two children get on, but one gets off. At the fifth stop, no one gets on or off. What is the bus driver’s name?” When you do not know where this brain teaser is going, it is very easy to pay attention to the wrong information and forget that at the beginning you are told that you are the school bus driver.
Bad briefs make the same mistake. They try to tell a story without first letting the reader know what framework to use to extract useful information from the story. Some extra details can build a powerful narrative, but they can also create a really confusing mess if the proper context is not provided. It should be clear at the beginning to an experienced judge which legal test is at issue and what the key fact (or two) is going to be at the heart of the case.
Clearly signaling the key part of the analysis not only reduces the mental burden on the judge, but also takes advantage of pattern recognition, the tendency of human beings to look for familiar patterns in new material.14 14 See, e.g., Michael Shermer, Patternicity, Sci. Am. (Dec. 2008). Science has shown that once people are primed to expect to see a particular pattern, they are more likely to interpret ambiguity in favor of seeing what they expect to find.15 15 What we observe depends tremendously on what we look for and what we expect to see. See Joseph T. Hallinan, Why We Make Mistakes 21–24 (2009). A good brief promises the reader a specific conclusion, and then builds steadily toward it.

Modifiers

Another important technical aspect of writing a good brief (as well as designing a good argument) is to avoid unnecessary modifiers. Naive advocates think that flowery adjectives and adverbs are important to good advocacy because they tell a vivid story. However, they are more often a trap. Adding modifiers creates an unnecessary opportunity for the judge to disagree. You create the risk that the judge will discount a perfectly valid argument because they reject your characterization of the facts.
Most appellate issues turn on nouns and verbs. Even when the governing legal standard is based upon an adjective like “reasonable,” judges tend to focus their rulings on the objective aspects of the case rather than the subjective ones. This provides clearer guidance when the court is in the role of law giver, and creates less risk that the court will act inconsistently. The subjective aspects of the case are usually the province of the fact finder and entitled to great deference from the appellate court. An appellate court will rarely be able to reject a subjective aspect of the fact finding. This is why most appellate arguments focus on legal issues rather than factual ones. Therefore, relying heavily on nouns and verbs is better approach to brief writing for this stage.

Quotations

An important technique in brief writing is to quote liberally from the record, the applicable law, and the opposing brief. Every day, judges see paraphrasings of facts, cases, and arguments that are not entirely accurate. When you paraphrase something, the judge will often wonder whether your statement is accurate. Many will assume (from experience) that you are trying to spin or gloss over something.
At this point, one of two things will happen. The first is that the judge will adopt a suspicious mentality and continue reading your argument, but with a more critical mindset than he or she would have had otherwise. Even minor issues, such as typos, will be magnified and impeach the credibility of your argument. The other possibility is that the judge will put down your brief to go find whatever it was that you were paraphrasing. Even if your paraphrasing was impeccable, the flow of your narrative and logic is interrupted, and it becomes harder for the judge to return the favorable mindset toward which you had been building.
Of course, once you have quoted something, you can paraphrase it more easily later, but crucial material must still be quoted. Even if you can paraphrase later, it is often beneficial to continue to quote the most important facts and authorities. This essentially shifts the focus of your brief. Instead of the judge thinking about whether he or she agrees with you, the judge is now confronted with whether he or she will reject the record or the authorities upon which you are relying.
It is important to keep your quotations short. Readers tend to skip past block quotations. I did not want to believe this fact at first, but I kept finding myself doing it. Pay attention to how you read others’ writing. You will learn a lot.16 16 See, e.g., Daniel M. Friedman, Winning on Appeal, in John G Koeltl & John Kiernan The Litigation Manual: Special Problems and Appeals 156 (1999). Therefore, your brief should not be huge blocks of quoted text. However, quoting key phrases and sentences goes a long way toward establishing trust by proving that you are not trying to mislead the court.

Going On the Offensive

The final brief writing technique that is almost always overlooked is seeding your brief with questions that you want the court to ask the opposition at argument. Imagine the questions that you would ask the other side if you were on the bench, and then take those questions and turn them into explicit, declaratory statements challenging the other side, such as “The appellant/appellee cannot cite a single case that rules in favor of his position where X was true,” or “The appellant/appellee cannot cite to a single page in the record that supports the proposition that the jury could have found that Y occurred in this case.” If you directly challenge your opponent in such a way, you will quickly find that judges will read your statements directly from your brief at oral argument. (You will also be shocked at how often your opponent does not have a prepared answer when confronted with an allegation directly from your brief.)
At the end of the day, there are many, many aspects of great brief writing. However, they all build upon working with how human beings read and process arguments in briefs. A great brief makes it as easy as possible for the judge to digest what is being said and to use it to write the final opinion in the case.

V. Designing Your Argument

There is a limit to how much you can do with rhetorical skill. Fundamentally, the content will have a huge impact on whether the appellate court accepts the argument. However, there is a lot that can be done to design and craft the argument that leads to your ultimate goal. Framing the problem in a way that leads to your preferred holding can be crucial. In addition, once the framing has been chosen, there are important choices to be made in shaping the details. Finally, the argument design process must also craft a response to the opposing argument.

A. The Importance of Narrative

Building an argument to take advantage of behavioral psychology is a much harder skill to learn and practice. It is not about the mental shortcuts that people use to process information, but how they evaluate human behavior and make judgments about whether that behavior was appropriate. As described below, human beings naturally use three different frameworks to evaluate the behavior of others. However, regardless of the framework, designing an argument — either from whole cloth or in response to the appellant — is about constructing a narrative.
Human beings are natural storytellers, and we respond to narratives about what human interaction is at the heart of a case.17 17 See James D. Ridgway, Patternicity and Persuasion: Evolutionary Biology as a Bridge Between Economic and Narrative Analysis in the Law, 35 S. Ill. U. L.J. 269, 279–82 (2011). Therefore, argument design must begin by identifying the human interaction that is the focus of the argument. Every legal case as about some sort of interaction between the human beings, whether it was a contract, a tort, a government enforcement action, or something else. Each case involves stories about what actually happened and might have happened differently. Ultimately, an appellate opinion settles the case or controversy before the court by telling a story about what happened and whether one or more of the characters in that story could have acted differently.
Choosing the proper story to tell is vital. Sometimes the most important interaction in a legal issue is not the one that precipitated the action on appeal. For the appellee in particular, it is often critical to challenge the story and present an alternative view of what interaction is at the heart of the narrative. Focusing on a different narrative will often allow you to acknowledge that the other party has a legitimate grievance, while redirecting the emotional element of the case to a different party.
One technique for identifying the interaction upon which to focus is to ask what should have happened. How could things have played out such that no one would feel aggrieved? This type of thought experiment will help you focus on which interactions were the opportunities to achieve a different outcome. These interactions may be remote from the immediate facts of the case, however. In particular, many cases may boil down to choices made by the legislature in drafting a statute or the executive in crafting a regulation, rather than choices made by the parties themselves.
This technique of structuring arguments around stories of human interaction is based upon how we think. Research shows that we evaluate the behavior of others using the parts of our brains that we would have used if we were performing the action ourselves. This function is performed by “mirror neurons.” Shermer theorizes that these neurons not only enable us to copy behavior, but also to infer the intent that motivated the person to perform the action.18 18 Michael Shermer, The Mind of the Market 131, 132–136 (2008). Describing the key interaction that should have gone differently will put the judge in the shoes of the person taking that action, and allow him or her to more easily imagine the alternative reality that demonstrates what could have happened to avoid the case at hand.

B. Identifying a Narrative

Evolutionary biology also has more specific lessons than simply the importance of basing arguments upon narratives. Research in this area teaches us that human beings interact in only three basic ways: competitively, cooperative, and accidentally.19 19 See James D. Ridgway, Patternicity and Persuasion: Evolutionary Biology as a Bridge Between Economic and Narrative Analysis in the Law, 35 S. Ill. U. L.J. 269, 282–90 (2011). People compete when each wants something that cannot be shared; people cooperate when they work together to create a benefit that they can share; and people interact accidently when they act without realizing the consequences their behavior will have on the affected party. Evolutionary biology identifies these three fundamental types of narratives and when to use them in your arguments.
Each of these interactions has its own evolved narrative that human beings use to evaluate whether the interaction went as it was supposed to have done. If you misidentify the type of interaction or use the wrong type of narrative to describe it, then you are presenting an argument that will have a very hard time engaging the court. For example, if parties were clearly competing with each other in some way, using a narrative appropriate to a cooperative interaction is very likely to strike the court as unconvincing. Understanding the elements that comprise the three narratives is therefore critical to crafting an effective argument strategy.

Competition

The first type of interaction is competition. People compete for things that cannot be shared. People compete for contracts, property, and educational and employment opportunities. These are zero-sum games.
The archetypal narrative of competition is fairness.20 20 See James D. Ridgway, Patternicity and Persuasion: Evolutionary Biology as a Bridge Between Economic and Narrative Analysis in the Law, 35 S. Ill. U. L.J. 269, 285–88 (2011). Depending upon your position, you will want to portray a competitive interaction as involving either a fair or unfair process. However, there is no single correct way to evaluate fairness. People of different ideological persuasions may look either very narrowly or very broadly to determine fairness. Some tend to focus on the immediate competition, while others tend to focus on whether a person had historic disadvantages that need to be addressed. Whatever view of fairness you take, an argument about a competitive interaction needs a fairness narrative.
You must be careful with fairness narratives, however. A mistake that is frequently made is to think that every legal issue is about competition because the parties are now in an adversarial posture. However, in many legal cases, the parties were not in competition at the time of the relevant interaction. Often, they were trying to cooperate. Do not assume that a case should always be presented as being about fairness. Nonetheless, if the interaction is truly competitive, then fairness should be the theme of the argument.

Cooperation

The second interaction is cooperation. This is where, at the time of the relevant interaction, the parties were trying to work together to make the pie bigger so that everyone could have a larger slice. Contracts are obviously rooted in cooperation, but so are many other activities. Law making, in particular, tends to involve disparate interests trying to cooperate to solve a problem. Therefore, narratives about what legislators intended often involve stories of cooperation.
In these types of interactions, the fundamental human instinct is to maximize the gain produced for the group.21 21 See James D. Ridgway, Patternicity and Persuasion: Evolutionary Biology as a Bridge Between Economic and Narrative Analysis in the Law, 35 S. Ill. U. L.J. 269, 284–85 (2011). Therefore, if the relevant interaction in a case were cooperative, then the argument would need to be about maximizing the gain. These arguments can be very tricky because the story of how to maximize the gain can be very different depending upon who is defined as a relevant party to the interaction and exactly what point in time you look at the choices available to the parties. However, a very effective argument is to show that your opponent is effectively trying to take what should be a cooperative interaction and turn it into a competitive one. You can turn the tables on a fairness argument by accusing the other party of taking a selfish approach to what should have been a cooperative interaction.

Accidents

The final interaction is accidental. These are the situations in which neither party was intentionally trying to affect the other. The most familiar accidents in law are negative ones, such as automobile accidents or professional malpractice. However, not all accidents are negative. Although tort cases are often about accidents that cause loss, other accidents cause a gain. For example, the patent system is about encouraging positive accidents by giving inventors a financial incentive to make their ideas public, so that they might inspire others to invent even more productive ideas.
Whether positive or negative, the fundamental way we think about accidental interactions is in terms of whether the outcome was foreseeable.22 22 See James D. Ridgway, Patternicity and Persuasion: Evolutionary Biology as a Bridge Between Economic and Narrative Analysis in the Law, 35 S. Ill. U. L.J. 269, 288–89 (2011). We put ourselves in the position of the person who took the action that had an accidental effect, and ask whether that was a reasonable action based upon the foreseeable consequences. This is where pure cost/benefit arguments have the greatest rhetorical power. Often the key to such an argument is identifying the moment in time to use when framing the issue of foreseeability. Whether the consequences were apparent and whether the party had any ability to act differently at that moment are the essence of the argument.
Once you are familiar with the three fundamental interactions and the associated narratives, you have an advantage, but effectively using this knowledge takes practice. Of course, identifying the correct type of interaction can be extremely tricky. With just two parties, the interaction can shift rapidly from trying to make the pie bigger to competing for the biggest slice. Adding a party can quickly shift what the relationships look like. As the number of parties increases, the number of interactions increases exponentially. The number of connections in a network, x, is based upon the number of nodes, n, where x=n(n-1)/2. The skill of attorneys is to find the best narrative that explains the relationships involved in the case and to tell the most convincing story to the court. Fortunately, this is a task that becomes much easier if you can identify a fundamental mistake by the opposing side in either identifying the relevant interaction or choosing an appropriate narrative.

C. Dealing With Opposing Arguments

The final aspect of constructing an argument is addressing the other side. This is one of the most common mistakes that is made in advocacy. I cannot count the number of arguments I have heard in which the two parties simply argued past each other without engaging. Similarly, the most frequent complaint I hear from judges about oral arguments is that the parties argue apples and oranges. This is a terrible, wasted opportunity.
Before beginning to write an appellee’s brief or a reply brief, I first address how to complete the following sentence: “My opponent’s argument would be correct if …” This is perhaps the single most powerful statement that is omitted from briefs and oral arguments. No matter how clear a case looks to you as a partisan, it is very unlikely to be that obvious to the court. From the court’s point of view, both sides have at least a kernel of a reasonable position, and the judge must find a basis for choosing between the sides.
Finding a clear basis to offer the court for making a choice addresses another problem in how we have evolved to think. An essential failing of human thinking is confirmation bias. We almost always think our cases are stronger than they really are because we tend to leap to conclusions first, and then give too much weight to points that support our initial conclusion and too little weight to those that contradict it.23 23 See Raymond S. Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in Many Guises, 2 Rev. of Gen. Psychol. 175 (1998); see also Michael Shermer, The Mind of the Market 90–92 (2008). This leads advocates to be so dismissive of the opposition that they do not engage the other side. To overcome this bias requires conscious effort.
Forcing yourself to walk through the case in the other person’s shoes fights this overconfidence. Often it will help you realize that your first instinct was not the best. Sometimes it is because you have overestimated the strength of the main argument that you wanted to make. Other times, you realize that there is a flaw in how the opposition framed the case, and attacking their framing is stronger than buying into it.
A vital aspect of appraising the other side’s case is to distinguish between your impression of the argument and what the brief actually says. After first reading my opponent’s brief quickly, I would almost always be shocked at how ridiculous it was and how easy it was to point out the flaws in it. However, in most every case, my confirmation bias was betraying my analytical skills. When I reread the other brief more carefully, I discovered that I had unfairly portrayed what it actually said, even though I knew that it was a trap that I should have been trying to avoid.
One technique that I found to be highly effective in combating my natural tendency to read the opposing brief in the worst light was to go back and type the key passages of the opposing brief into my own draft, so that I would have to directly confront them later. When you paraphrase an opposing argument, you almost always fail to give it enough credit. It is rare for an opposing argument to be as bad as you wish it would be. When you deal with it word-for-word, you are much more likely to appreciate its full strength and address it with the care it deserves.
Particularly if you are the appellee, you should not even begin to do more than outline your brief until you can complete a sentence that identifies the smallest change to the facts or law that it would take for the other side to be correct. If you invest too much energy in one line of argument before you really understand how you will engage the opposing side, you will be reluctant to abandon your initial investment of time, even when a better argument is available. It is simply human nature to avoid realizing a lost investment, even when it is the most profitable thing to do.24 24 See Terrance Odean, Are Investors Reluctant to Realize Their Losses?, 53 J. of Fin. 1775 (1998).
However you complete that sentence, it is vital to treat the other side with as much respect as you possibly can. Usually, we only make ourselves look foolish when we treat the other side as fools. There are many different ways to complete your preliminary argument sentence that show respect for the other side: “My opponent’s argument would be correct if the regulations had used [word X] as it did in this other context, instead of [word Y]” “My opponent’s argument would be correct if [this] had happened before [that].” “My opponent’s argument might be persuasive if this were an open issue, but the legislature has chosen how this issue should be resolved, rather than leaving it to the courts.” “My opponent’s reliance on that case would be correct except that [X fact] is missing from the facts at hand.” Of course, having multiple alternative versions of this sentence to use is also an effective way to show that something would have to be different for the other side to be correct. However you present it, giving your opponent credit and giving the court a precise way to explicitly reject your opponent’s argument in addition to accepting yours, creates a clear path for the court to go where you want it to go.
There are occasional cases in which the opposing position is truly outrageous, if not unethical. In such cases, it is better to calmly lead the judge to that conclusion than to fly into righteous indignation. Unfortunately, every day judges read briefs that make unfounded accusations of fraud and unprofessionalism. So many of these allegations are frivolous that it is hard to pay much attention to them. In other words, so many other advocates cry wolf, that judges have largely become numb to these allegations.
Demonstrating that an opposing argument is deceitful or unethical is really no different than a normal demonstration that it is without merit. Rely heavily on quotations. Instead of shouting fraud, simply state something like: “At page X of appellant’s brief, he states [‘insert quotation from the brief here’]. However, the only evidence in the record on that point is at page A of the record, where Mr. B testified that [‘insert contradictory quotation here’].” Make it clear that you are not attempting to spin anything. Let the judge reach the conclusion that the other side is acting unethically. In my experience, the court will be much more invested in pursuing something that looks like misconduct if they feel like the concern arose sua sponte.
At the end of the day, a powerful argument has two key features. It has a narrative that is correctly built upon a human interaction, and it explicitly addresses how to distinguish the opposing argument while still giving it as much credit as possible.

VI. Improving Your Advocacy Skills

The last lesson from behavioral psychology to understand is that we as advocates are also humans. The way we get better at tasks is feedback. Learning is the first step to improving. Training is how we actually become better. This involves acting first, and then receiving accurate feedback on how well we performed so that we correctly memorize what works.25 25 See Joseph T. Hallinan, Why We Make Mistakes 172–73 (2009). There are two important techniques we can use to give ourselves feedback on our advocacy skills.

A. Training Your Instincts

The first technique examines our argument design skills. After you have read the record or the appellant’s argument, write out the parenthetical of the case that governs each issue. This tests your legal instincts. Once you have written out the parenthetical, you have three alternative goals: (1) to find the case in your research that supports that parenthetical, (2) to focus your argument on having the opinion in this case support that parenthetical, or (3) to learn why that parenthetical is unsustainable based upon the law as it currently exists.
At the end of your brief writing process, you must return to that parenthetical. If you found authorities that were directly on point, that teaches you that your instincts or recollection were good. If you did not find authorities to support that parenthetical, but you were able to design your case around advocating for that parenthetical, that tells you that you had good instincts about how the law works with the facts of your case. If you discover that your final argument was substantially different from what you thought it would be, that teaches you that there was something wrong with your instincts. You need to identify what that was and learn from it. Was the established law different from what you expected it to be? Did you end up focusing on a different interaction than you thought you would? In any event, you need that feedback on how much you can trust your instincts and what you need to learn.
In particular, if the argument develops in an unexpected way, then you need to honestly examine why that was and what led you in a different direction. Essentially, what you are trying to do is identify the heuristic that led you to the wrong conclusion so that you can start recognizing it and practice replacing it with a new way of thinking that will become a better heuristic once you ingrain it.
Identifying what it was that led you in a different direction has the additional advantage of helping you to complete your brief and prepare for oral argument. If you are an experienced advocate and your instincts are generally good, then there is a fair chance one of the judges on the panel will have had the same initial impression that you did. Knowing exactly what was wrong with this instinct prepares you to walk a judge from that starting point to your final path if it becomes apparent that the judge had the same initial reaction to the case that you did.
The more you train your skills in identifying the correct arguments to make, the more efficient an advocate you will be, and the more prepared you will be at argument or elsewhere when confronted with issues that were completely off your radar.

B. Training Your Skills

Not only do you need to train your analytical ability, but you need to train your communication skills. After the court decides a case, go reread your briefs and listen to your arguments again with the final result in hand. You cannot rely on your memory because human beings naturally edit our recollections to make our choices seem better to ourselves than they really were.26 26 Mara Mather & Marcia K. Johnson, Choice-Supportive Source Monitoring: Do Our Decisions Seem Better to Us as We Age?, 15 Psychol. & Aging 596 (2000). If the court did not do exactly what you wanted it to do, you must take responsibility and assume that you could have done something differently, even if it was not something that you understood at the time.
Advocacy is a form of communication. You can never blame the audience for not understanding you. You must continually look for new and better ways to connect to the audience you have. Understanding the basic principles and techniques is only the beginning. Successfully utilizing them is the goal of advocacy.
No matter how well you succeeded or failed, you must ask yourself the key questions: Will you be able to cite this opinion for the parenthetical you wanted? How closely did the court follow the argument that you were suggesting? Can you identify any language from your brief in the decision? Did the court focus on the same interaction that you did and did it characterize it in the same way?
There is no worse feeling as an advocate than being ignored. If the court simply adopts the argument of the opposing side without even addressing your argument, then you must admit that you failed as a communicator. Did you provide an explicit argument why the argument adopted by the court was incorrect? Sometimes you will lose on pure ideological grounds that cannot be reversed with advocacy in a single case, but you need to learn the embedded frameworks that the judges will use to evaluate future cases so that you can do your best to construct a narrative that works within the worldview of the court.
You must also look for points that you made that were mischaracterized by the court. If the court did not restate your argument correctly, it is because you gave them an opportunity to do so. How did they translate your brief and argument into the characterization of your position? Did they focus on one of your subpoints and lose the main theme of your argument? Did they misunderstand the narrative that you were using? You must compare the language they used to the language you used and think about how you could have drafted your argument differently.
Even if you succeeded, it is very important to closely examine your success. Were there any parts of the court’s analysis that differed from your own? If the court phrased a point differently, do you need to do a better job on similar points in the future or should you recognize that using that phrasing will better connect with you in the future? When you recall that brief writing is about reducing the burden on the judge to translate your argument into the court’s opinion, you realize how important it is to examine opinions closely even when you win.
If you repeat the same behavior without carefully analyzing whether it is good behavior, you run the risk that you are merely reinforcing bad habits. It is against human nature to recognize and recall our own flaws.27 27 See Joseph T. Hallinan, Why We Make Mistakes 56–75 (2009). Therefore, we must take deliberate steps to evaluate the effectiveness of our advocacy and communication skills with techniques that force us to confront the difference between the rosy picture of what we would like to think happened and the less attractive reality of what actually happened.

VII. Conclusion

Understanding that judges are human beings who use the same cognitive processes as anyone else is an incredibly powerful tool in advocacy. Ultimately, the job of judges is to make decisions, and there is a tremendous amount of research on how people make decisions. It is vitally important to be familiar with this research and how to apply it to the skills of oral advocacy, brief writing, and argument design. However, it is also important to remember that we, as advocates, are humans, too. As advocates, we will fall into our own traps if we are not careful. Knowing your audience begins with knowing yourself.
A great advocate not only leads the court to the desired outcome by the easiest possible path, but constantly works to improve his or her own advocacy skills. In the past, these skills were often developed by instinct or through trial and error. However, the insights of behavioral psychology now make it possible to become much better, much faster by understanding how the actual processes of decision making and persuasion work.

Footnotes

1Professorial Lecturer in Law, George Washington University Law School; Chief Counsel for Policy and Procedure, Board of Veterans’ Appeals. Professor Ridgway regularly argued appellate cases as an appellate prosecutor in Chicago, clerked for two different members of the U.S. Court of Appeals for Veterans Claims, and was a finalist in the American Forensics Association National Individual Events Tournament. All the views expressed in his writings are personal and not official positions of any employer past or present.
2See, e.g., Robert A. Leflar, The Multi-Judge Decisional Process, 42 Md. L. Rev. 722 (1983).
3See Daniel Kahneman, Thinking, Fast and Slow (2011).
4See, e.g., Jörg Rieskamp & Ulrich Hoffrage, Inferences Under Time Pressure: How Opportunity Costs Affect Strategy Selection, 127 Acta Psychologica 258 (2008).
5George A. Miller, The Magical Number Seven, Plus or Minus Two: Some Limits on Our Capacity for Processing Information, 63 Psychol. Rev. 81 (1956).
6See, e.g., Nelson Cowan, The Magical Number 4 in Short-Term Memory: A Reconsideration of Mental Storage Capacity, 24 Behavioral & Brain Sci. 87 (2001).
7See, e.g., D.A. Brodie & B.B. Murdock, Effects of Presentation Time on Nominal and Functional Serial Position Curves in Free Recall, 16 J. of Verbal Learning & Verbal Behavior 185 (1977).
8R.F. Bornstein, Exposure and Affect: Overview and Meta-Analysis of Research, 1968–1987, 106 Psychol. Bull. 265 (1989).
9See, e.g., Peter Hagoort & Willem J. M. Levelt, The Speaking Brain, Sci. 372 (Oct. 16, 2009).
10See Howard Giles & Philip Smith, Accommodation Theory: Optimal Levels of Convergence, in Howard Giles & Robert N. St. Clair, Lang. and Soc. Psychol. (1979).
11See, e.g., Elliot Aronson et al., Soc. Psychol. (8th ed. 2012).
12See, e.g., I Think It’s Time We Broke For Lunch . . . Court Rulings Depend Partly on When the Judge Last Had a Snack, The Economist (Apr. 14, 2011).
13Of course, the problem of transaction costs preventing parties from reaching ideal outcomes was famously described by Ronald Coase. Ronald Coase, The Problem of Social Cost, 3 J.L. & Econ. 1 (1960).
14See, e.g., Michael Shermer, Patternicity, Sci. Am. (Dec. 2008).
15What we observe depends tremendously on what we look for and what we expect to see. See Joseph T. Hallinan, Why We Make Mistakes 21–24 (2009).
16See, e.g., Daniel M. Friedman, Winning on Appeal, in John G Koeltl & John Kiernan The Litigation Manual: Special Problems and Appeals 156 (1999).
17See James D. Ridgway, Patternicity and Persuasion: Evolutionary Biology as a Bridge Between Economic and Narrative Analysis in the Law, 35 S. Ill. U. L.J. 269, 279–82 (2011).
18Michael Shermer, The Mind of the Market 131, 132–136 (2008).
19See James D. Ridgway, Patternicity and Persuasion: Evolutionary Biology as a Bridge Between Economic and Narrative Analysis in the Law, 35 S. Ill. U. L.J. 269, 282–90 (2011).
20See James D. Ridgway, Patternicity and Persuasion: Evolutionary Biology as a Bridge Between Economic and Narrative Analysis in the Law, 35 S. Ill. U. L.J. 269, 285–88 (2011).
21See James D. Ridgway, Patternicity and Persuasion: Evolutionary Biology as a Bridge Between Economic and Narrative Analysis in the Law, 35 S. Ill. U. L.J. 269, 284–85 (2011).
22See James D. Ridgway, Patternicity and Persuasion: Evolutionary Biology as a Bridge Between Economic and Narrative Analysis in the Law, 35 S. Ill. U. L.J. 269, 288–89 (2011).
23See Raymond S. Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in Many Guises, 2 Rev. of Gen. Psychol. 175 (1998); see also Michael Shermer, The Mind of the Market 90–92 (2008).
24See Terrance Odean, Are Investors Reluctant to Realize Their Losses?, 53 J. of Fin. 1775 (1998).
25See Joseph T. Hallinan, Why We Make Mistakes 172–73 (2009).
26Mara Mather & Marcia K. Johnson, Choice-Supportive Source Monitoring: Do Our Decisions Seem Better to Us as We Age?, 15 Psychol. & Aging 596 (2000).
27See Joseph T. Hallinan, Why We Make Mistakes 56–75 (2009).

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When the State Becomes the Criminal, Is “Sorry” Enough? http://www2.stetson.edu/advocacy-journal/when-the-state-becomes-the-criminal-is-sorry-enough/ http://www2.stetson.edu/advocacy-journal/when-the-state-becomes-the-criminal-is-sorry-enough/#comments Wed, 08 Jan 2014 02:19:54 +0000 http://www2.stetson.edu/advocacy-journal/?p=258

LeslieRae Newton1 1 LeslieRae Newton graduated from Stetson University College of Law in December 2012, and is now an Air Force JAG Officer. The views expressed here should not be taken as representing those of the Air Force.

1 Stetson J. Advoc. & L. 169 (2014)

I. Introduction

The past century reveals critical issues questioning the fundamental value of the criminal justice system,2 2 Hugo Munsterberg, On The Witness Stand: Essays on Psychology and Crime (1923, originally published in 1908). which proclaims that “it is far worse to convict an innocent man than to let a guilty man go free.”3 3 See In re Winship, 397 U.S. 358, 372 (1970); William Blackstone, Commentaries on the Laws of England: Of Trial, and Conviction, Book 4 ch. 27; see also Alexander Volokh, N Guilty Men, 146 U. Pa. L. Rev. 173 (1997). The fact the system is flawed is not alarming. However, what is alarming is the state’s reluctance to accept responsibility when prosecutors willfully engage in misconduct — misconduct that deprives the wrongly accused not only of a fair trial but of freedom and life.
John Thompson’s case exemplifies conscious misconduct of the prosecution and supports the doubt about whether innocence is in fact protected at all costs. Thompson’s exoneration came just weeks before his execution date in 1999 after serving eighteen years in prison, fourteen of them on death row. Thompson was the victim of a double assault by the Orleans Parish district attorney’s office who shamelessly achieved convictions for both armed robbery and murder. The assault began when two separate eyewitness reports, initially describing the assailant who shot and killed Raymond Liuzza, Jr., as a man with “close cut hair,” were ignored. Thompson’s hair was styled in a large “Afro” during the time of the murder, quite contrary to the “close cut” described by eyewitnesses. The reports were never turned over to the defense or the court, and forced Thompson to fight a senseless battle for his life.
Through media coverage of the murder investigation, Thompson’s face entered homes across the city and thereby became a second target of misidentification for an unrelated armed robbery. The father of the victims of the attempted robbery showed the children Thompson’s picture from the newspaper. The children said that he was the man who tried to rob them. The same picture from the newspaper was used in a photographic lineup. The children picked the same picture they saw in the newspaper from the lineup.
After this (mis)identification as the assailant in the armed robbery, the unscrupulous conduct continued. When the prosecution received DNA results from a blood sample taken during the robbery investigation providing the assailant’s blood type, rather than testing Thompson’s blood for a match, the prosecution suppressed the report and never mentioned it to the defense. (The assailant left the blood on one of the children’s pants leg.) The report would have provided the defense with DNA proof the assailant in the robbery had type-B blood, while Thompson has type-O. Elisa Abolafia, the investigator hired to research the last appeal, discovered all this. The swatch itself has never been recovered. This information stayed the execution and led to Thompson’s subsequent exoneration.4 4 John Thompson, The Prosecution Rests, but I Can’t, New York Times, April 9, 2011.
Further efforts to keep the defense in the dark occurred when the prosecution checked all the evidence out of the police property room, just after receiving the report, and transferred everything to the courthouse property room. Then the assistant district attorney checked out the bloody pants twice, returning them the first time but not the second.5 5 Email from Elisa Abolafia, Thompson Paper (Oct. 9, 2011, 11.09 a.m. EDT). Neither the report nor the swatch was mentioned for fourteen years. Through tactical planning, The State was able to convict Thompson of both crimes, and because it strategically sought the armed robbery conviction first, the jury complied with the state’s prescription for execution.
Thompson did not just miss out on his own life. He missed teaching his sons — aged four and six at the time of his conviction — how to play ball, drive a car, treat a woman, and become men. Thompson’s story is not unique. There are many men and women who have suffered years and years in prison or, worse, on death row, for crimes they did not commit because the prosecution did not want to lose.
Although time and diligence revealed the injustice and prompted exoneration, Thompson’s case exposed another fatal flaw in the “justice” system. The 2011 Supreme Court’s opinion in Connick v. Thompson shut one more door for exonerees to redress the willful and malicious discard of the criminal justice system’s fundamental value in protecting the innocent.6 6 Connick v. Thompson,131 S. Ct. 1350 (2011).
The ability for exonerees to seek compensation through civil litigation is fading faster with every trip to the Supreme Court. The Court has repeatedly decided that the doctrines protecting prosecutors, regardless of culpability, are stronger than the need for the state to right the wrong and attempt to make the victim whole again. Law school teaches students that people who break the law will be held accountable under the criminal system and that the victim can be made whole through civil litigation. Law school fails to mention the exceptions that apply to prosecutors’ liability for wrongful conviction, or that the victims of willful prosecutorial misconduct are generally barred from suit.
This paper will briefly address the history of prosecutorial duties and protections before considering the reasons associated in abandoning those duties and engaging in willful misconduct. Despite the protections in place to dissuade it, misconduct occurs in its most egregious form: wanton and willful. The results of misconduct can be deadly, and yet when willful misconduct is evident, victims are seldom compensated. The third section discusses redressing exonerees and mitigating misconduct through an examination of prosecutorial immunity, municipality immunity, state and legislative monetary compensations, the effectiveness of apologies for wrongdoing, and the unnecessary deference to precedent. The final section suggests a possible direction to correct this injustice.

II. Prosecutorial Duties and Protections

State and federal prosecutors are in a unique subset of lawyers who possess a duty that transcends mere representation of a client. The primary duty of a lawyer engaged in public prosecution is “not to convict, but to see that justice is done.”7 7 1908 Canons of Prof'l Ethics Canon 5: The Defense or Prosecution of Those Accused of a Crime; see also Berger v. United States, 295 U.S. 78, 79 (1935). In fact, a prosecutor is a representative of all the people, the defendant included. If we are to believe the old adage “innocent until proven guilty,” a prosecutor’s duty to maintain the constitutional rights of the defendant is just as important as his or her duty to any other citizen. This unique obligation is embodied through the development and advancement of the ethic codes adopted by the states and reflected in case law.
The American Bar Association (ABA) has long recognized that justice can only be fulfilled if advocates maintain integrity and impartiality in the administration of the law. In 1908, the ABA created a series of canons to address the need for a written resource to guide advocates in proper behavior. The original thirty-two canons became insufficient to guide lawyers and have evolved into the current Model Rules of Professional Conduct (Model Rules), which every state (except California) has adopted to some extent.
The current Model Rules directly address prosecutorial ethics and specifically address the responsibility to “make timely disclosure” of any and all evidence that negates guilt or mitigates the offense at all stages of the trial, and extends to post-conviction discovery. Additionally, the Model Rules require any prosecutor who “knows of clear and convincing evidence” establishing a convicted individual’s innocence to “seek to remedy the conviction.”8 8 1908 Canons of Prof'l Ethics, Canon 5: The Defense or Prosecution of Those Accused of a Crime, R. 3.8(h).
In addition to the adoption of ethic codes, the Supreme Court has addressed the disclosure duties of prosecutors. In Brady v. Maryland, the Court held explicitly that prosecutors must turn over any material favorable to the defendant.9 9 Brady v. Maryland, 373 U.S. 83 (1963).
The Brady Rule has developed strength within the Court over the past fifty years and is a necessary component of due process to “ensure that a miscarriage of justice does not occur.” When the “miscarriage of justice” does occur concerning evidence with a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different,” the Court states the conviction should be reversed, and a new trial granted, but makes no offering of compensation.10 10 U.S. v. Bagley, 473 U.S. 667, 682 (1985); see also Kyles v. Whitley, 514 U.S. 419, 438 (1995). Before granting relief for a Brady violation, the claimant must establish that:
  1. The evidence is exculpatory or impeaching;11 11 Youngblood v. West Virginia, 547 U.S. 867 (2006).
  2. The evidence was withheld by the state; and
  3. Prejudice resulted.12 12 Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
Like most rules, there are exceptions to Brady’s application. The prosecution is not required to disclose exculpatory evidence during plea bargaining13 13 U.S. v. Ruiz, 536 U.S. 622, 630 (2002). or post-conviction proceedings. The proper claim for post-conviction due process is not under Brady, but under examination if the state’s action “offends some principle of justice.”14 14 District Attorney’s Office v. Osborne, 129 S. Ct. 2308, 2319–20 (2009). Additionally, Brady does not consider the reason behind the suppression of evidence. There is no distinction between intentional and accidental suppression of evidence.
Sometimes the misconduct is a result of a poor choice or inherent affect of a choice made under pressure. However, it is the misconduct that is willful and wanton that should shock the conscience of the court and permit the wrongfully convicted to seek civil redress.

III. The Rationale for Willful Misconduct

It would be difficult to argue that a prosecutor, who suppressed, fabricated, or destroyed evidence, could think he or she was within the color of the law.15 15 While prosecutorial misconduct is not the only condition for which the wrongfully convicted are exonerated, for the purposes of this paper, only willful misconduct will be examined. A more accurate assessment for such tortious behavior would reveal the presence of arrogance, tunnel vision, or departmental influence. It is not hard to believe that pressure to maintain a high conviction rate can dim a young prosecutor’s zeal for truth and justice.
While misconduct can be linked to many factors, the primary causes appear to be the institutionalization of the career, political pressures, and mere personal ambition — any of which creates an environment where prosecutors may resort to cutting corners, many of them right off the Constitution.16 16 See generally Ephraim Unell, A Right Not to Be Framed: Preserving Civil Liability of Prosecutors in the Face of Absolute Immunity, 23 Geo. J. Legal Ethics 955 (2010); Brad Heath & Kevin McCoy, Prosecutors’ Conduct Can Tip Justice Scales, USA Today, Sept. 23, 2010.

Batting Averages in the Office and the Polls

The mentality of prosecutors’ offices can be “win at all costs,” which fosters an environment that abandons the impartial advocate in exchange for a high-conviction batting average17 17 See Kenneth Bresler, “I Never Lost a Trial”: When Prosecutors Keep Score of Criminal Convictions, 9 Geo. J. Legal Ethics 537, 541–42 (1996); Malia N. Brink, A Pendulum Swung Too Far: Why the Supreme Court Must Place Limits on Prosecutorial Immunity, 4 Charleston L. Rev. 1, 16–17 (2009). and stimulates “conviction psychology.”18 18 Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291, 328 (2006). The political veil most state chief prosecutors wear as elected officials can influence their department’s “win at all costs” mentality. While the term “chief” prosecutor conveys a single person, states can have over one hundred chief prosecutors who typically serve four-year terms. Like any other elected official, candidates facing opposition for election need to create favor with the public and address public issues and concerns. Chief prosecutors generally run on a “tough-on-crime” or “hard-nosed prosecutor” platform and highlight agendas to expedite backlogs, with rare discussion of actual performance within the office.19 19 Ronald F. Wright, Symposium, Prosecutorial Discretion: How Prosecutor Elections Fail Us, 6 Ohio St. J. Crim. L. 581, 600, 602–04 (2009).
Individual office approaches are a bit different. Rather than a generalized theme, there may be a direct campaign on conviction, sometimes highlighted by bulletin boards promoting a “conviction psychology.” This psychology is often nurtured by the filtered presentation of “all the evidence” given to the prosecutor, as well as confirmation of the evidence against the accused through a grand jury’s indictment. Evidence the police deem to be unimportant is not always retained or turned over to the state prosecutor.20 20 Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291, 330 (2006); Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence, 84 B.U.L. Rev. 125 (2004).
The public scrutiny on high-profile cases can add to the pressure on a prosecutor to meet shifting public expectations. Typically, when the victim is a member of the affluent community, the public interest is swift “justice” for the victim, which is often centered more on “closing the case” and obtaining a conviction than ensuring the accused is the actual assailant.21 21 See Connick v. Thompson, 131 S. Ct. 1350, 1371 (2011) (Ginsburg, J., concurring). However, when the defendants are members of the affluent community, the interest shifts to concern for a fair trial, the maintenance of every constitutional guarantee and the highest ethical behavior by the state.22 22 See Wikipedia, Duke Lacrosse Case
Another office pressure is the increased case load prosecutors have come to handle. USA Today reported less than ten years ago there was one prosecutor for every fourteen defendants, but by 2009 the case load doubled.23 23 Brad Heath & Kevin McCoy, Prosecutors’ Conduct Can Tip Justice Scales, USA Today, Sept. 23, 2010.
The maintenance of a good conviction rate does not coincide with a reputation for integrity or accountability. Sometimes the quest for the truth is lost in the quest for a conviction. The real shame is that when the truth does surface around the misconduct of a case tallied in the ‘win’ column, little if anything is done to change the environment fueling the problem.

The Rogue Prosecutor

Despite years of training to uphold — and allegiance to — the Constitution, prosecutors are not immune to misconduct for personal ambition. When a state or federal prosecutor’s dedication to winning becomes stronger than his or her professional responsibility, the consequences can destroy careers, lives, and families. Unfortunately, there are few deterrents in place to control misconduct and often, the prosecutor at fault not only goes unpunished, but maintains his or her “win.” The office handling the post-conviction case sustains the “loss” which in most cases is not the same office that tried the case.24 24 James S. Liebman, The Overproduction of Death, 100 Colum. L. Rev. 2030, 2120 (2000).
Recounting successful convictions to colleagues and friends can generate “atta-boy” self-confidence that manifests into a methodology of defining success in terms of wins and losses or convictions and acquittals, creating tunnel vision. Experts break tunnel vision down into several categories of biases, each with the potential to create an inaccurate reality based on subconscious tendencies. The charge of the prosecutor to be an objective and impartial officer of the court fades when the prosecutor interprets information and circumstantial evidence in the light of a personally generated, or suggested, theory.25 25 Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291, 307–08 (2006).
Examining evidence with a preconceived idea of what happened is not exclusive to the criminal justice world. Scientists have noted skewed research results based on inaccurate conceptualizing of observations in a variety of testing environments. One suggestion for the skewed vision, despite training, is that the individual may “equate what they think they see, and sometimes what they want to see, with what actually happens.” An influenced distortion of information is not only common, but it is actually necessary to understanding new information. The framework of experience and knowledge allows individuals to perceive new information with the ability, through former associations, to process information in a meaningful manner. One scientist describes the theory as a necessary contradiction and notes “we cannot perceive unless we anticipate, but we must not see only what we anticipate.”26 26 Michael D. Risinger, et al., The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion, 90 Calif. L. Rev. 1, 7–14 (2002).
Such biased perception in a prosecutor’s office does not just throw off data in an experiment; it costs people years, decades, and sometimes their life. Studies reveal that the desire to confirm prior beliefs or theories, whether introduced by a supervisor or investigator or created through the investment of time, causes people to use information in ways that confirm the original conclusion. One manner is to use only information that supports the original conclusion. Another tendency is to recall facts, observations, and conversations in a manner supporting the original conclusion. Possibly the most fatal tendency is to discredit information that contradicts the original conclusion. Especially in environments inflicted with a “conviction psychology,” maintaining an original conclusion by discrediting contradictory evidence, or altering the interpretation, facilitates the rationalization for misconduct, particularly Brady violations.27 27 Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291, 311–15, 328 (2006).
Perhaps the best description of the internal justification for prosecutorial misconduct is from Jack Wolfe, a former federal prosecutor in Texas, who told USA Today:

Prosecutors think they’re doing the Lord’s work, and that they wear the white hat. … I thought everything I did was right. So even if you got out of line, you could tell yourself that you didn’t do it on purpose, or that it was for the greater good.28 28 Brad Heath & Kevin McCoy, Prosecutors’ Conduct Can Tip Justice Scales, USA Today, Sept. 23, 2010.

Prosecutorial misconduct and arrogance can be attributed to a variety of factors emerging from countless sources, but the true problem is the systemic protection of unfettered arrogance.29 29 Brad Heath & Kevin McCoy, Prosecutors’ Conduct Can Tip Justice Scales, USA Today, Sept. 23, 2010. The checks in place to review a claim of innocence may be enough to vindicate the wrongly convicted, but the checks do very little, if anything, to stop prosecutorial misconduct. Because the system lacks adequate repercussions for prosecutorial misconduct, not only are the wrongly convicted denied actual justice, but the prosecutors are all but encouraged to continue with their conviction-hungry antics.

IV. Redress, and Mitigating Misconduct

Human institutions are inherently imperfect. In fact, Justice Scalia addressed the imperfection stating, “one cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation.”30 30 Kansas v. Marsh, 548 U.S. 163, 199 (2006). While human error cannot be completely negated, the redress John Thompson sought did not trickle down from a mistake. Thompson’s suit was not against the eyewitnesses who mistakenly identified Thompson. He sought accountability from the prosecutors who willfully suppressed evidence that would have vindicated him of the false charge before spending eighteen years in prison. Thompson’s exoneration was only the first step in reclaiming his life.
Exoneration only places the wrongfully convicted on the outside of prison walls. Exoneration does not reestablish the life held before being convicted of a crime committed by someone else. Competing for a job is difficult after spending years in prison on the wrong side of the learning curve, and can be particularly hard for members of broken homes.31 31 Adele Bernhard, A Short Overview of the Statutory Remedies for the Wrongly Convicted: What Works, What Doesn’t and Why, 18 B.U. Pub. Int. L.J. 403, 407 (2009). The options to financially stabilize victims of prosecutorial misconduct are increasingly scarce.
With criminal prosecution of rogue prosecutors at the discretion of the state and unable to provide the victim with actual compensation, civil litigation should be a readily available avenue for victims of prosecutors’ willful misconduct. Indeed, such redress is the very heart and soul of civil litigation — the ability to make one whole after an injury inflicted by another. However, prosecutors, and their offices, are generally protected by civil immunity for their actions, regardless of cause or effect.32 32 Imbler v. Pachtman, 424 U.S. 409, 428–30 (1976).

Barring Civil Litigation

The primary federal statute used in a civil claim for an unlawful constitutional violation, including unjust conviction, is 42 U.S.C. § 1983, which states in part:

Every person who under color of any statute … subject[s] any citizen of the United States … to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured … except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity …33 33 42 U.S.C. § 1983 (1996).

While section 1983 provides the unjustly convicted hope for civil redress, the opportunity to use the statute is limited. The Supreme Court, in interpreting prosecutors’ role in advocating a case as “quasi-judicial,” has afforded prosecutors absolute immunity against civil suit and liability to injured parties in all acts or omissions as an advocate.34 34 Imbler v. Pachtman, 424 U.S. 409, 424–27 (1976). If the act or omission occurred outside the “quasi-judicial” delineation, during the prosecutor’s role as an investigator or administrator, a qualified immunity is applied.35 35 Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993); Tenney v. Brandhove, 341 U.S. 367, 376 (1951). As a result, very few cases have made it to court, and even fewer have provided relief for the wrongly convicted.36 36 Innocence Project, Frequently Asked Questions.

Prosecutorial Immunity

While the reasons behind prosecutorial misconduct are elusive, the immunity attached to prosecutorial misconduct is well defined and often all-inclusive. There are two types of immunity to which a prosecutor may be entitled: absolute immunity and qualified immunity.
Generally speaking, immunity is a protection provided in certain situations to encourage action without fear of suit. Such is demonstrated in the Good Samaritan Doctrine that most states have adopted by statute to some extent. The goal of the Good Samaritan Doctrine is to encourage people to help others in need without the hesitation of being sued if something goes wrong. Nonetheless, there are exceptions.37 37 Good Samaritan Doctrine. Justice Cardozo noted that “[i]t is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.”38 38 Glanzer v. Shepard, 135 N.E. 275, 276 (N.Y. 1922).
The Good Samaritan Doctrine provides an exception to immunity from civil litigation for victims who are injured as a result of another’s failure to exercise “reasonable care to protect his undertaking.”39 39 Restatement (Second) of Torts 324A (1965).
Prosecutors enjoy a type of immunity that extends far beyond the Good Samaritan rule, despite the difference that a prosecutor is trained in the law, takes an oath to perform duties faithfully, and is charged with the extraordinary power to seek justice, not convictions.40 40 32 C.F.R. § 12.3 (b)(11). Perhaps the more important observation is that prosecutorial immunity does not pause to consider why the injustice occurred or if the prosecutor even exercised “reasonable care to protect his undertaking.” In fact, the only consideration is in which functional capacity the prosecutor was acting when the misconduct occurred.41 41 Van de Kamp v. Goldstein, 129 S. Ct. 855, 861 (2009).
Prosecutorial immunity is far more than a defense to a civil suit; it removes the ability to even file a civil suit against a prosecutor and frees prosecutors from all burdens associated with litigation.42 42 Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982); see also Mitchell v. Forsyth, 472 U.S. 511, 525–26 (1985). If the misconduct happened during the prosecutor’s role as an advocate, then absolute immunity protects the prosecutor.43 43 Imbler v. Pachtman, 424 U.S. 409, 428–30 (1976). Whereas, if the court finds the act does not meet the guidelines for absolute immunity, the prosecutor may still be protected by qualified immunity depending on the factual determination44 44 Johnson v. Jones, 515 U.S. 304, 313 (1995). regarding the prosecutor’s role as an investigator or administrator.45 45 Burns v. Reed, 500 U.S. 478, 494–96 (1991).

Absolute v. Qualified Immunity

In extending absolute immunity to prosecutors, the Court equated prosecutors with legislators, judges and jurors who, “acting within the scope of their duties,” have historically operated under the guarantee of absolute immunity.46 46 Imbler v. Pachtman, 424 U.S. 409, 417–23 (1976). Common law has long recognized absolute immunity as a necessary protection in the judicial process because of the inherent need to use discretionary judgment — which is often a subject for debate. Similarly, the Court has protected prosecutorial immunity through the prosecutor’s “quasi-judicial” role and may only be challenged when the prosecutor’s act or omission occurs outside the role of advocate during his or her role as an investigator or administrator.47 47 Burns v. Reed, 500 U.S. 478, 500–01 (1991).
The nature of the specific act determines whhich prosecutorial duties receive absolute immunity and which receive qualified immunity, not the result of the act or the title of the actor. Prior to establishing probable cause to arrest a suspect, the Court finds most acts by prosecutors analogous to investigative acts by police and detectives, which only receive qualified immunity. Acts that can be “retrospectively described as ‘preparation’ for a possible trial” are not automatically afforded absolute immunity, and there is no rationale to extending prosecutors absolute immunity where police, performing the same function, receive qualified immunity. Nevertheless, probable cause is not a definitive line. After probable cause is established (or if a prosecutor decides to bring an indictment without probable cause), it is still necessary to determine if the act was committed as an advocate, or as an investigator or administrator.48 48 Buckley v. Fitzsimmons, 509 U.S. 259, 274 (1993).
Finding the act occurred outside the role as an advocate is the only lifeline a claimant has against a prosecutor. If the act occurred when the person was not acting as an advocate, the person is only entitled to a qualified immunity. If the only immunity applicable is qualified immunity, it only applies when the conduct “does not violate clearly established statutory or constitutional right of which a reasonable person would have known.”49 49 Behrens v. Pelletier, 516 U.S. 299, 306–07 (1996) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus good faith comes into question when determining if qualified immunity applies.50 50 Fed. Prac. & Proc. Juris. § 3573.3 Stated another way, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”51 51 Malley v. Briggs, 475 U.S. 335, 341 (1986).
When the Court found prosecutors to be “quasi-judicial” officers and afforded them absolute immunity for all actions, regardless of malicious intent, the Court enabled even the “plainly incompetent or those who knowingly violate the law” to behave without liability to the very justice they are charged with protecting.

Policy v. Reality

In extending prosecutorial immunity, the Court relied up the fear that if prosecutors are not afforded absolute immunity as advocates, the fear of unfounded litigation would distract the prosecutor and “shade his decision instead of [allowing him to] exercise[e] the independence of judgment required by his public trust.”52 52 Imbler v. Pachtman, 424 U.S. 409, 423 (1976). But, the reality of absolute immunity allows prosecutors to act without accountability, under the color of law, and without fear that a defendant will file a civil suit when that power is abused.
The policy behind absolute immunity treats the prosecutor’s office as an ideal group of people, and forgets human intuitions are inherently imperfect, with imperfect and corrupt participants. One thing separating many criminals from the rest of the world (besides getting caught) is the self-assurance he or she will not face punishment. Absolute immunity furthers that notion. A vivid illustration rests in the media attention during the market crash in 2007. In the wake of the crash, Investment News reported more than half of those surveyed said they would take part in insider trading if they knew they would not be arrested, noting “[i]t can’t be wrong if I can’t get caught.”53 53 Darla Mercado, Getting Caught’s the Crime, Says Traders, Investment News, Aug. 20, 2007. Absolute immunity may not remove the fear of being caught, but it does remove accountability to the victim.
The line separating absolute immunity from qualified immunity not only offers courts confusion in application,54 54 Compare Buckley v. Fitzsimmons, 509 U.S. 259 (1993), with Imbler v. Patchman, 424 U.S. 409 (1976). but it is not even necessary to protect public policy. In reality, absolute immunity weakens faith in the criminal justice system because the individuals who suffer the most from the overbreadth of its application are the same individuals targeted by the prosecutorial misconduct that is protected by its application. Indeed, there is significant distrust of the criminal justice system among the poor and minorities. An estimated 57% of those wrongfully convicted are African-American.55 55 Margaret Johns, Reconsidering Absolute Prosecutorial Immunity, 2005 B.Y.U.L. Rev. 53, 123, 124–25 (2005).
While the Court interprets section 1983 to contain, through silence, absolute immunity for prosecutors in “quasi-judicial” roles,56 56 Fed. Prac. & Proc. Juris. § 3573.3 at note 32. it does not make sense for Congress to establish a remedy for victims of governmental officials who illegally abuse their power by depriving citizens of their constitutional rights, if the protectors of citizens’ constitutional rights are absolutely immune when they illegally abuse their power.
Indeed, public policy is offended when criminal activity is protected against litigation. Imbler v. Pachtman is a cornerstone in the Court’s interpretation and application of absolute immunity. Interestingly, Justice White’s concurring opinion in Imbler challenges the historic footing of prosecutorial immunity and notes the use of civil damages in section 1983 as a congressional attempt to deter governmental misconduct against its citizens. Absolute immunity could not frustrate this objective more. Justice White stated “it is by no means true that such blanket absolute immunity is necessary or even helpful in protecting the judicial process” and concluded “one would expect that the judicial process would be protected — and indeed its integrity enhanced — by denial of immunity to prosecutors who engage in unconstitutional conduct.”57 57 Imbler v. Pachtman, 424 U.S. 409, 430–31, 442 (1976) (White, J., concurring). Nevertheless, Justice White upheld the majority’s application of absolute immunity because the violations were not adequately alleged.
Despite extending absolute immunity, Imbler accurately described absolute immunity as “leav[ing] the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.” In spite of the consequences, Imbler’s majority rested with the notion that anything less than absolute immunity would “disservice the broader public interest.”58 58 Imbler v. Pachtman, 424 U.S. 409, 427 (1976). The question remains: if qualified immunity is a sufficient tool to protect the honest governmental officials, why does the Court majority insist on extending absolute immunity to dishonest and incompetent prosecutors?

Municipality Immunities

In light of prosecutors’ absolute immunity as advocates, exonerees such as John Thompson have sought to hold the local government accountable for prosecutors’ misconduct, under section 1983 through an “inadequate training” claim.59 59 Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011). However, while section 1983 may hold local governments or municipalities — although “local government” and “municipality” are used interchangeably by the Court in the application of section 1983, “municipality” will be used throughout the discussion here — liable for deprivation of federal rights, section 1983 is not a vicarious liability outlet and may not be applied through a theory of respondeat superior.60 60 Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986). The limited application by the Court diminishes the glimmer of hope section 1983 gave to holding someone accountable for prosecutorial misconduct.

Early Interpretations of Section 1983

The emergence of section 1983 brought decades of Supreme Court decisions, and several subsequent reversals, regarding application to municipalities. Initially in interpreting section 1983, the Court held municipalities were not included in the “persons” addressed as having liability under section 1983, creating absolute municipality immunity.61 61 Monroe v. Pape, 365 U.S. 167, 187 (1961). Seventeen years later, the Court overruled Monroe and decided municipalities were not entitled to absolute immunity and may be liable under section 1983 in some situations.62 62 Monell v. Dept. of Social Serv., 436 U.S. 658, 702 (1978). The question of qualified immunity was not, however, addressed.
After failing to address under which situations municipalities may be liable for under section 1983, the Court specifically addressed municipality immunity. While reaffirming a state officer’s qualified immunity when acting in accordance to policy or custom, the Court rejected extending qualified immunity to municipalities for the employee’s corresponding “good-faith” constitutional violation. However, the Court stated municipality liability does not arise out of a theory of respondeat superior; municipality liability only attaches to constitutional violations when the tort arises from the official policy or custom an employee was carrying out. The Court noted that, if municipalities were afforded immunity with any greater application, not only would the legislative purpose of section 1983 be discredited, but such application would offend public policy. 63 63 Owen v. City of Independence, 445 U.S. 622, 650 (1980).
In short, liability under section 1983 extends to the individual or entity whose own act or omission caused the illegal deprivation of a federal right. As a result, if the prosecutor illegally deprived an individual’s constitutional rights based on an “action pursuant to official municipal policy of some nature,” the individual or municipality responsible for imposing the policy or custom may be held civilly liable.64 64 Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (quoting Monell v. Dept. of Social Serv., 436 U.S. 658, 664, 691 (1978)); see also Connick v. Thompson, 131 S. Ct. 1350, 1359–60 (2011).

Vanishing Liability for Prosecutorial Misconduct

The potential for municipalities to be civilly liable for employees’ actions, based on custom or policy, seemingly created an avenue toward redress. However, to have a valid cause of action, the exoneree must base his claim on the prosecutor’s misconduct arising from a municipality’s policy or custom.65 65 Connick v. Thompson, 131 S. Ct. 1350, 1359–60 (2011). Prosecutorial misconduct, by definition, is an “improper or illegal act (or failure to act)”;66 66 Black’s Law Dictionary (Bryan A. Garner ed., 9th ed., 2009). findings that a policy or custom directly generated such “improper or illegal” behavior in a district attorney’s office have been few and very far between.67 67 Compare Redcross v. County of Rensselaer, 511 F. Supp. 364, 370 (N.D.N.Y. 1981) with Cerbone v. County of Westchester, 508 F. Supp. 780, 783–84 (S.D.N.Y. 1981). Some exonerees, such as John Thompson, have filed claims based on a municipality’s failure to train, which allegedly provided cause for the prosecutorial misconduct.68 68 Connick v. Thompson, 131 S. Ct. 1350 (2011).
In Connick, the Court construed a decision not to train employees to avoid violating a citizen’s rights as an “official policy” under section 1983. However, the Court further indicated a failure to train claim must be supported by the municipality’s “deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.” Deliberate indifference is an exceedingly tough standard to prove because the burden of proof requires establishing that “a municipal actor disregarded a known or obvious consequence of his action.”69 69 Connick v. Thompson, 131 S. Ct. 1350, 1359, 1360 (2011) quoting City of Canton, Ohio v. Harris, 489 US 378, 388 (1989) and Board of Comm’rs of Bryan Co. v. Brown, 520 U.S. 397, 410 (1997).
The Court indicates a pattern of constitutional violations may be enough to put a municipality on notice of the need to train, but a single act of tortious conduct in a “peculiar incident” does not indicate improper training or knowing disregard. Though not explicit, the Court seems to imply that a pattern of constitutional violations requires not only similar acts or omissions, but also similar details surrounding the act or omission. The Court’s cavalier statement makes two cases of misconduct, by suppressing evidence, singular “peculiar incident[s]” if the nature of the suppressed material is technically different. Factual distinctions between cases will inherently classify virtually all misconduct cases as “peculiar incident[s].”70 70 Connick v. Thompson, 131 S. Ct. 1350, 1354, 1360 (2011); see Board of County Comm’rs, 520 U.S. 397, 408–09 (1997). Because the Court’s scrutiny focused on the details of what the violation pertained to, and not the violation itself, it is hard to imagine enough cases where the details would afford proper notice.
There is an exception to the requirement that a pattern of constitutional violations must exist before a municipality may be liable. If the constitutional violation encountered was the “obvious” consequence of inadequate training, the single incident may be enough to establish municipal liability because such a failure may imply deliberate indifference to the obvious need.71 71 City of Canton, Ohio v. Harris, 489 U.S. 378, 388–89 (1989). The Connick Court addressed the need for Brady training as being “unobvious” because law school provides prosecutors with ample training to prepare them in practice.72 72 The formal training and continuing education, coupled with the ethics training and assessments — which should provide policy support to holding prosecutors liable for their wanton disregard for the oath taken as a prosecutor –- is the same rationale for removing fault from the chief prosecutor and municipality. Connick v. Thompson, 131 S. Ct. 1350, 1361–63 (2011). Through discounting any suggested fault or oversight of the chief prosecutor or municipality, the Court suggests the prosecutors’ actions were independent, self-generated decisions to disobey the law, and were made despite adequate academic preparation in the application of clearly defined law. It is this very type of behavior which the Court finds eludes local government detection, that should fit within the classification of “plainly incompetent or those who knowingly violate the law.”73 73 Malley v. Briggs, 475 U.S. 335, 341 (1986).
The protection of prosecutors’ voluntary decisions to violate the law is mysterious. With the judiciary systematically removing the ability for the unjustly convicted to seek redress against prosecutorial misconduct, the exonerated are left seeking legislative provisions.

Other Options for Monetary Compensation

With immunity barring civil litigation as a viable option for exonerees, the alternative for compensation is through a private bill providing for reparation or a compensation statute. Of the two governmental attempts to compensate exonerees private bills are the most difficult, inconsistent, and least frequented course of compensation primarily because of their inherent political nature.74 74 Innocence Project, Making up for Lost Time: What the Wrongfully Convicted Endure and How to Provide Fair Compensation (2009).
Private legislative bills proposing a monetary award to compensate an exoneree for the state’s misconduct75 75 Adele Bernhard, When Justice Fails: Indemnification for the Unjust Conviction, 6 U. Chi. L. Sch. Roundtable 73, 93–97 (1999). have several drawbacks beginning with those state constitutions that prohibit private legislative bills and continuing with the need for the political connections necessary to pass the bill.76 76 John J. Johnston, Student Author, Comment & Note: Reasonover v. Washington: Toward a Just Treatment of the Wrongly Convicted in Missouri, 68 U.M.K.C.L. Rev. 411, 416–17 (2000).
The very nature of a private bill’s success requires the exoneree to find a legislator who will introduce the bill and enough political favor to see its passage.77 77 Adele Bernhard, A Short Overview of the Statutory Remedies for the Wrongly Convicted: What Works, What Doesn’t and Why, 18 B.U. Pub. Int. L.J. 403, 408 (2009); see also Innocence Project, Making up for Lost Time: What the Wrongfully Convicted Endure and How to Provide Fair Compensation (2009). If successful, the outcome can be very lucrative because the amount approved depends on the favor of the political players, not the limits of a statutory formula, but the process can take years, is unpredictable, and not guaranteed to bear fruit.78 78 Adele Bernhard, A Short Overview of the Statutory Remedies for the Wrongly Convicted: What Works, What Doesn’t and Why, 18 B.U. Pub. Int. L.J. 403, 407–08 (2009).
More frequently, exonerees receive monetary compensation through a state statute. Twenty-seven American governments, including the District of Columbia and the federal system, have compensation statutes. Compensation statutes offer a formula for the amount of financial assistance to those able to demonstrate actual innocence and wrongful conviction. Since the statutes are not uniform, the variations between each statute prescribe a wide range of monetary compensation depending on the state, the conviction, and a variety of statistical formulations. Yet, the compensation is not certain, swift, accommodating, or comprehensive. The average wait for exonerees who meet all the requirements in a state with a compensation statute is three full years. Even then, the majority of exonerees do not receive the full amount, and few are offered assistance with societal integration. In fact, 81% receive less than the federal standard and only ten states provide services such as educational assistance, employment training, or other social services.79 79 Innocence Project, Reforms by State.
Compensation statutes do not immediately afford exonerees compensation even when actual innocence is demonstrated. There are countless requirements, varying from state-to-state, precluding compensation for reasons such as providing a false confession (regardless of coercion) or having a previous felony (even if unrelated). As a result, compensation for actual innocence of a wrongful conviction for rape and kidnapping can be barred by a single, unrelated drug conviction that is over ten years old.
While compensation statutes present a variety of serious problems, the most prevalent problem is how the prosecutor’s role in the wrongful conviction is ignored.80 80 See Innocence Project, Reforms by State. Whether the exoneree suffered decades of death row incarceration because of witness misidentification or because of the prosecution’s deliberate suppression of evidence, the statutory award remains the same. Mistakes happen and state compensation statutes try to address the inherent flaws of human institutions, but compensation statutes do nothing to redress the prosecutors’ malicious constitutional violations of the defendant in the first place.

The Effectiveness of Apologies

Redress and accountability for prosecutorial misconduct is increasingly limited. Judicial options are few and far between, and legislative options never consider the prosecutor’s fault for the injustice. As a result, victims of prosecutorial misconduct are left with only the possibility of an apology as acknowledgment for wrongdoing. While an apology does nothing to sustain financial well-being for exonerees, an apology can be critical in the healing necessary for the exoneree to begin life again and to reintegrate with society.
Apologies have been long documented to help victims overcome suffering from the wrongdoing of another. Apologies help erase stigmas that a mere exoneration cannot, and yet an overwhelming number of prosecutors deny the simple gesture.81 81 Abigail Penzell, Apology in the Context of Wrongful Conviction: Why the System Should Say It’s Sorry, 9 Cardozo J. Conflict Resol. 145, 145–47 (2007). By denying public acceptance of responsibility, the individual and community skepticism of the justice system continues unfettered. When an exoneration based on actual innocence does not automatically expunge the conviction record,82 82 Exoneration does not necessarily seal the conviction record of the wrongful conviction. Many states have required procedures in order to seal the record often, requiring the hiring of an attorney to carry out the required procedures, which takes money many exonerees do not have. See 22 Okl. St. Ann. § 18 (2011); 22 Okl. St. Ann. § 19 (2002); Buechler v. State, 175 P.3d 966, 969 (2007). the public acknowledgment of the prosecutor’s wrongdoing helps confirm the actual innocence of the victim to those skeptical of the release by relieving some of the stigma previously felt by the exoneree, even after being released.83 83 Abigail Penzell, Apology in the Context of Wrongful Conviction: Why the System Should Say It’s Sorry, 9 Cardozo J. Conflict Resol. 145, 145–46 (2007).
Even though apologies are documented to make a difference in the healing process, many prosecutors whose misconduct created the avoidable injustice are reluctant to apologize. Aside from pride and arrogance, there are few reasons the prosecutor should resist a public apology. In other situations, people hesitate to apologize for fear that the apology will be used in litigation as acknowledgment of wrongdoing.84 84 Abigail Penzell, Apology in the Context of Wrongful Conviction: Why the System Should Say It’s Sorry, 9 Cardozo J. Conflict Resol. 145, 152–53 (2007). Absolute immunity from civil litigation bars suits even before the discovery phase begins, however, removing potential liability as a reason for not apologizing.85 85 See Connick v. Thompson, 131 S. Ct. 1350 (2011).
The remaining rationale lends to the same rationale used for prosecutorial misconduct. A prosecutor who is more concerned with a conviction record than justice is similarly unmoved with recanting his or her contribution to the miscarriage of justice. However, the lack of apology does not indicate the prosecutor felt no fault in the wrongful conviction. Some malicious prosecutors will admit fault when an extenuating circumstance, such as declining health, intervenes, perhaps to clean their guilty consciences. In Connick v. Thompson, for example, the prosecutor’s confession of his misconduct came just after being diagnosed with terminal cancer; it was given to a former assistant district attorney, who withheld the information until questioned about the recovery of the missing crime lab report.86 86 Connick v. Thompson, 131 S. Ct. 1350, 1357 (2011).
With the Court permitting prosecutorial misconduct to rest behind absolute immunity, there are few people addressing the accountability of the misconduct.87 87 Connick v. Thompson, 131 S. Ct. 1350, 1363 (2011) (citing LSBA Articles of Incorporation and ABA Model Rule of Prof’l Conduct); but see Neil Gordon, Misconduct and Punishment, Ctr. for Pub. Inquiry; Ephraim Unell, A Right Not to Be Framed: Preserving Civil Liability of Prosecutors in the Face of Absolute Immunity, 23 Geo. J. Legal Ethics 955, 960 (2010). As a result, prosecutors are never forced to accept their misconduct was not for the “greater good.”88 88 Brad Heath & Kevin McCoy, Prosecutors’ Conduct Can Tip Justice Scales, USA Today, Sept. 23, 2010. Without a public method to confront the problem of prosecutorial misconduct at the source, the conduct will inevitability persist.

Precedent

One argument protecting the continued use of absolute immunity is precedent. This argument is unpersuasive and needs little discussion. Indeed, precedent regarding municipality immunity has already been overturned and restructured. Precedent denying justice in constitutional violations has never carried weight to continue injustice. The Dred Scott case reminds us all too well precedent is not an inexorable command.89 89 Scott v. Sandford, 60 U.S. 393 (1857). In fact, the Court clearly acknowledges “stare decisis is not an inexorable command. … [It] is a principle of policy and not a mechanical formula of adherence to the latest decision.”90 90 Payne v. Tennessee, 501 U.S. 808, 828 (1991) (quoting Helverling v. Hallock, 309 U.S. 106, 119 (1941); see also Lawrence v. Texas, 539 U.S. 558, 577 (2003); Smith v. Allwright, 321 U.S. 649, 655 (1944): “this Court has never felt constrained to follow precedent.” Indeed, while the judicial process is directed to a political end, the law is a language “judged by its usefulness” to work for the present community rather simple application of what historically was applied.91 91 The Canon of American Legal Thought 736–38 (David Kennedy & William W. Fisher III eds., 2006).

V. Between a Rock and a Hard Place

While the number of exonerees based on actual innocence is low compared to the number of prisoners,92 92 Kansas v. Marsh, 548 U.S. 163, 197 (2006) (Scalia, J., concurring) (citing Joshua Marquis, The Innocent and the Shammed, N.Y. Times, Jan. 26, 2006). it says very little of the priority we place on the claimed fundamental value of the criminal justice system. Claiming “it is far worse to convict an innocent man than to let a guilty man go free” means little when the innocent is convicted, the individual guilty for that injustice is the one who goes free, and the system facilitates it. In fact, it seems that when the fundamental value is compromised, so is the fact that the real victim in the miscarriage of justice is the wrongfully accused. The system becomes tied up in evaluating the need to protect the wrongdoer, and the focus on the victim is lost. Sherrilyn Ifill observed on her blog that neither counsel nor any of the Justices made any reference to John Thompson, or his suffering fourteen years on death row, during the Supreme Court Oral Arguments. Further, she noted in the transcript:

indifference and cynicism that so often characterizes our society’s response to gross and inhumane constitutional violations in the criminal justice system. … A man’s life was stolen … and still Justice Scalia’s most biting and obnoxious remarks … were greeted … with laughter.93 93 Sherrilyn Ifill, Why We Ignored the Supreme Court’s Review of Connick v. Thompson, American Constitution Society for Law and Policy blog, Oct. 12, 2010.

Perhaps the media will be the key to changing the injustice happening to a minority of the individuals who pass through the justice system, just as the media were instrumental in bringing a minority’s fight against injustice to the forefront of American history during the Civil Rights Movement.94 94 Aniko Bodroghkozy, Equal Time: Television and the Civil Rights Movement (2012). Hollywood has taken a step in the production of movies and films such as Conviction, the true story of Betty Anne Waters in her journey to exonerate her brother after eighteen years in prison because of the state’s misconduct. And although the movie does not fully explore the extent of the misconduct, it does illustrate the unlawful threat and manipulation of depositions taken by state officials to seek an arrest and ultimately a conviction.95 95 Conviction, Motion Picture (Columbia Pictures 2010). The public can only fight to change the injustices it is aware of, and without the media, social striations keep the plight of the injustice from people who influence political players. (While the unjustly convicted are not always a classic minority, minority in this term is used to describe the population targeted by prosecutorial misconduct, which is not the majority of the population.)
Until the problem addressing prosecutorial misconduct becomes a “political end,” and the polls are affected by the neglect of accountability or redress for avoidable injustice in an already flawed system, we may never see true justice for the exonerated or the true criminal.

Footnotes

1LeslieRae Newton graduated from Stetson University College of Law in December 2012, and is now an Air Force JAG Officer. The views expressed here should not be taken as representing those of the Air Force.
2Hugo Munsterberg, On The Witness Stand: Essays on Psychology and Crime (1923, originally published in 1908).
3See In re Winship, 397 U.S. 358, 372 (1970); William Blackstone, Commentaries on the Laws of England: Of Trial, and Conviction, Book 4 ch. 27; see also Alexander Volokh, N Guilty Men, 146 U. Pa. L. Rev. 173 (1997).
4John Thompson, The Prosecution Rests, but I Can’t, New York Times, April 9, 2011.
5Email from Elisa Abolafia, Thompson Paper (Oct. 9, 2011, 11.09 a.m. EDT).
6Connick v. Thompson,131 S. Ct. 1350 (2011).
9Brady v. Maryland, 373 U.S. 83 (1963).
10U.S. v. Bagley, 473 U.S. 667, 682 (1985); see also Kyles v. Whitley, 514 U.S. 419, 438 (1995).
11Youngblood v. West Virginia, 547 U.S. 867 (2006).
12Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
13U.S. v. Ruiz, 536 U.S. 622, 630 (2002).
14District Attorney’s Office v. Osborne, 129 S. Ct. 2308, 2319–20 (2009).
15While prosecutorial misconduct is not the only condition for which the wrongfully convicted are exonerated, for the purposes of this paper, only willful misconduct will be examined.
16See generally Ephraim Unell, A Right Not to Be Framed: Preserving Civil Liability of Prosecutors in the Face of Absolute Immunity, 23 Geo. J. Legal Ethics 955 (2010); Brad Heath & Kevin McCoy, Prosecutors’ Conduct Can Tip Justice Scales, USA Today, Sept. 23, 2010.
17See Kenneth Bresler, “I Never Lost a Trial”: When Prosecutors Keep Score of Criminal Convictions, 9 Geo. J. Legal Ethics 537, 541–42 (1996); Malia N. Brink, A Pendulum Swung Too Far: Why the Supreme Court Must Place Limits on Prosecutorial Immunity, 4 Charleston L. Rev. 1, 16–17 (2009).
18Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291, 328 (2006).
19Ronald F. Wright, Symposium, Prosecutorial Discretion: How Prosecutor Elections Fail Us, 6 Ohio St. J. Crim. L. 581, 600, 602–04 (2009).
20Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291, 330 (2006); Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence, 84 B.U.L. Rev. 125 (2004).
21See Connick v. Thompson, 131 S. Ct. 1350, 1371 (2011) (Ginsburg, J., concurring).
23Brad Heath & Kevin McCoy, Prosecutors’ Conduct Can Tip Justice Scales, USA Today, Sept. 23, 2010.
24James S. Liebman, The Overproduction of Death, 100 Colum. L. Rev. 2030, 2120 (2000).
25Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291, 307–08 (2006).
26Michael D. Risinger, et al., The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion, 90 Calif. L. Rev. 1, 7–14 (2002).
27Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291, 311–15, 328 (2006).
28Brad Heath & Kevin McCoy, Prosecutors’ Conduct Can Tip Justice Scales, USA Today, Sept. 23, 2010.
29Brad Heath & Kevin McCoy, Prosecutors’ Conduct Can Tip Justice Scales, USA Today, Sept. 23, 2010.
30Kansas v. Marsh, 548 U.S. 163, 199 (2006).
31Adele Bernhard, A Short Overview of the Statutory Remedies for the Wrongly Convicted: What Works, What Doesn’t and Why, 18 B.U. Pub. Int. L.J. 403, 407 (2009).
32Imbler v. Pachtman, 424 U.S. 409, 428–30 (1976).
3342 U.S.C. § 1983 (1996).
34Imbler v. Pachtman, 424 U.S. 409, 424–27 (1976).
35Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993); Tenney v. Brandhove, 341 U.S. 367, 376 (1951).
36Innocence Project, Frequently Asked Questions.
38Glanzer v. Shepard, 135 N.E. 275, 276 (N.Y. 1922).
41Van de Kamp v. Goldstein, 129 S. Ct. 855, 861 (2009).
42Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982); see also Mitchell v. Forsyth, 472 U.S. 511, 525–26 (1985).
43Imbler v. Pachtman, 424 U.S. 409, 428–30 (1976).
44Johnson v. Jones, 515 U.S. 304, 313 (1995).
45Burns v. Reed, 500 U.S. 478, 494–96 (1991).
46Imbler v. Pachtman, 424 U.S. 409, 417–23 (1976).
47Burns v. Reed, 500 U.S. 478, 500–01 (1991).
48Buckley v. Fitzsimmons, 509 U.S. 259, 274 (1993).
49Behrens v. Pelletier, 516 U.S. 299, 306–07 (1996) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
51Malley v. Briggs, 475 U.S. 335, 341 (1986).
52Imbler v. Pachtman, 424 U.S. 409, 423 (1976).
53Darla Mercado, Getting Caught’s the Crime, Says Traders, Investment News, Aug. 20, 2007.
54Compare Buckley v. Fitzsimmons, 509 U.S. 259 (1993), with Imbler v. Patchman, 424 U.S. 409 (1976).
55Margaret Johns, Reconsidering Absolute Prosecutorial Immunity, 2005 B.Y.U.L. Rev. 53, 123, 124–25 (2005).
57Imbler v. Pachtman, 424 U.S. 409, 430–31, 442 (1976) (White, J., concurring).
58Imbler v. Pachtman, 424 U.S. 409, 427 (1976).
59Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011).
60Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986).
61Monroe v. Pape, 365 U.S. 167, 187 (1961).
62Monell v. Dept. of Social Serv., 436 U.S. 658, 702 (1978).
63Owen v. City of Independence, 445 U.S. 622, 650 (1980).
64Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (quoting Monell v. Dept. of Social Serv., 436 U.S. 658, 664, 691 (1978)); see also Connick v. Thompson, 131 S. Ct. 1350, 1359–60 (2011).
65Connick v. Thompson, 131 S. Ct. 1350, 1359–60 (2011).
66Black’s Law Dictionary (Bryan A. Garner ed., 9th ed., 2009).
67Compare Redcross v. County of Rensselaer, 511 F. Supp. 364, 370 (N.D.N.Y. 1981) with Cerbone v. County of Westchester, 508 F. Supp. 780, 783–84 (S.D.N.Y. 1981).
68Connick v. Thompson, 131 S. Ct. 1350 (2011).
69Connick v. Thompson, 131 S. Ct. 1350, 1359, 1360 (2011) quoting City of Canton, Ohio v. Harris, 489 US 378, 388 (1989) and Board of Comm’rs of Bryan Co. v. Brown, 520 U.S. 397, 410 (1997).
70Connick v. Thompson, 131 S. Ct. 1350, 1354, 1360 (2011); see Board of County Comm’rs, 520 U.S. 397, 408–09 (1997).
71City of Canton, Ohio v. Harris, 489 U.S. 378, 388–89 (1989).
72The formal training and continuing education, coupled with the ethics training and assessments — which should provide policy support to holding prosecutors liable for their wanton disregard for the oath taken as a prosecutor –- is the same rationale for removing fault from the chief prosecutor and municipality. Connick v. Thompson, 131 S. Ct. 1350, 1361–63 (2011).
73Malley v. Briggs, 475 U.S. 335, 341 (1986).
75Adele Bernhard, When Justice Fails: Indemnification for the Unjust Conviction, 6 U. Chi. L. Sch. Roundtable 73, 93–97 (1999).
76John J. Johnston, Student Author, Comment & Note: Reasonover v. Washington: Toward a Just Treatment of the Wrongly Convicted in Missouri, 68 U.M.K.C.L. Rev. 411, 416–17 (2000).
77Adele Bernhard, A Short Overview of the Statutory Remedies for the Wrongly Convicted: What Works, What Doesn’t and Why, 18 B.U. Pub. Int. L.J. 403, 408 (2009); see also Innocence Project, Making up for Lost Time: What the Wrongfully Convicted Endure and How to Provide Fair Compensation (2009).
78Adele Bernhard, A Short Overview of the Statutory Remedies for the Wrongly Convicted: What Works, What Doesn’t and Why, 18 B.U. Pub. Int. L.J. 403, 407–08 (2009).
79Innocence Project, Reforms by State.
80See Innocence Project, Reforms by State.
81Abigail Penzell, Apology in the Context of Wrongful Conviction: Why the System Should Say It’s Sorry, 9 Cardozo J. Conflict Resol. 145, 145–47 (2007).
82Exoneration does not necessarily seal the conviction record of the wrongful conviction. Many states have required procedures in order to seal the record often, requiring the hiring of an attorney to carry out the required procedures, which takes money many exonerees do not have. See 22 Okl. St. Ann. § 18 (2011); 22 Okl. St. Ann. § 19 (2002); Buechler v. State, 175 P.3d 966, 969 (2007).
83Abigail Penzell, Apology in the Context of Wrongful Conviction: Why the System Should Say It’s Sorry, 9 Cardozo J. Conflict Resol. 145, 145–46 (2007).
84Abigail Penzell, Apology in the Context of Wrongful Conviction: Why the System Should Say It’s Sorry, 9 Cardozo J. Conflict Resol. 145, 152–53 (2007).
85See Connick v. Thompson, 131 S. Ct. 1350 (2011).
86Connick v. Thompson, 131 S. Ct. 1350, 1357 (2011).
87Connick v. Thompson, 131 S. Ct. 1350, 1363 (2011) (citing LSBA Articles of Incorporation and ABA Model Rule of Prof’l Conduct); but see Neil Gordon, Misconduct and Punishment, Ctr. for Pub. Inquiry; Ephraim Unell, A Right Not to Be Framed: Preserving Civil Liability of Prosecutors in the Face of Absolute Immunity, 23 Geo. J. Legal Ethics 955, 960 (2010).
88Brad Heath & Kevin McCoy, Prosecutors’ Conduct Can Tip Justice Scales, USA Today, Sept. 23, 2010.
89Scott v. Sandford, 60 U.S. 393 (1857).
90Payne v. Tennessee, 501 U.S. 808, 828 (1991) (quoting Helverling v. Hallock, 309 U.S. 106, 119 (1941); see also Lawrence v. Texas, 539 U.S. 558, 577 (2003); Smith v. Allwright, 321 U.S. 649, 655 (1944): “this Court has never felt constrained to follow precedent.”
91The Canon of American Legal Thought 736–38 (David Kennedy & William W. Fisher III eds., 2006).
92Kansas v. Marsh, 548 U.S. 163, 197 (2006) (Scalia, J., concurring) (citing Joshua Marquis, The Innocent and the Shammed, N.Y. Times, Jan. 26, 2006).
93Sherrilyn Ifill, Why We Ignored the Supreme Court’s Review of Connick v. Thompson, American Constitution Society for Law and Policy blog, Oct. 12, 2010.
95Conviction, Motion Picture (Columbia Pictures 2010).

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