Stetson Journal of Advocacy and the Law http://www2.stetson.edu/advocacy-journal The first online law review designed to be read online Sat, 28 Mar 2015 03:08:05 +0000 en-US hourly 1 Holistic Client-Centered Advocacy in Juvenile Delinquency Cases http://www2.stetson.edu/advocacy-journal/holistic-client-centered-advocacy-in-juvenile-delinquency-cases/ http://www2.stetson.edu/advocacy-journal/holistic-client-centered-advocacy-in-juvenile-delinquency-cases/#comments Fri, 27 Mar 2015 01:17:15 +0000 http://www2.stetson.edu/advocacy-journal/?p=373

Lisa A. Polansky1 1 Attorney, Independent Consultant on Juvenile Justice, Founder and Executive Director of the Center for Juvenile Justice, and Incoming Director of the Project for the Innocent and Associate Clinical Professor at Loyola Law School, August, 2015. The author would like to thank Samantha Gurrentz, a recent law graduate from Tulane University, School of Law, and now a Colorado-licensed attorney, for her legal research and contribution to this article, and Peter Sauer, Attorney from Cooley, LLP, for his unwavering support and editing of this article.

2 Stetson J. Advoc. & L. 1 (2015)

I. Introduction

As a deputy public defender in Los Angeles, my goal was always to get the best result for my client. As all criminal defense attorneys know, depending on the case, a successful result can mean many different things. From an outright dismissal, or keeping the client free from imprisonment, to securing a favorable plea bargain, or minimizing or eliminating financial penalties, each case has its own definition of success.
In order to obtain the best result for the client, I did all that I could, testing and challenging the prosecution’s case in every way possible. This often meant drafting and filing numerous motions, long hours preparing for and proceeding to trial, leaving no stone unturned when it came to discovering and developing any and all mitigating circumstances, and making sure the prosecution and the court were fully aware of these circumstances, giving my client the best chance for a favorable outcome.
When I started working with youth as my clients, representing them in juvenile delinquency court in Los Angeles, my perspective on my job as an advocate changed. Representing kids took more than just an attack the prosecution approach. Along with the typical litigation tactics I discuss above, I had to consider the child as whole.
In order to be effective I had to understand the child’s family history, his upbringing, intellectual capacity, school performance, history of trauma, psychological profile, and the child’s dreams, aspirations and goals. I learned that, although the child often did not understand the consequences of his actions and usually could not comprehend the long-term effects of any plea deal offered or conviction (“adjudication” in juvenile court), it was my job to help him understand so he would be empowered to make an informed decision about his actions in the case and his life.
Additionally, like my adult cases, it was also my ethical duty to advocate for the protection of the child’s constitutional rights. Consequently, in the twenty-one months I was assigned to the juvenile unit, I took over 250 cases to trial (“adjudication hearing” in juvenile court). My strategy in these cases often included: requesting school records and other court records, such as those from dependency court, to seeking the assistance of social workers and other experts in a variety of fields from psychology to special education.
I often called these professionals as witnesses in the trials and sentencing hearings (“disposition hearing” in juvenile court). I would challenge the transfer of these youth to adult court, utilizing these same tactics and with unrelenting zeal. I genuinely allowed myself to be compassionate and human, while applying my lawyering skills, to provide to the child client, either directly or indirectly, assistance in their lives with the goal of providing “holistic representation,” although I do not believe that term was being used back then.
This experience laid the groundwork for my commitment to juvenile justice and the eventual formation of a non-profit organization, the Center for Juvenile Justice. The Center focuses on representing youth in delinquency proceedings utilizing a holistic approach; networking with community members to support youth at risk and those incarcerated; and teaching law students to be able to employ their legal skills in a holistic manner and work within an interdisciplinary team to advocate for the whole child.
A compassionate advocate must have a fundamental understanding of the context in which they are working with youth clients. This means not only studying and learning the procedural mechanisms and the applicable case law, but also gaining a firsthand understanding of the problems and challenges children face within and beyond the confines of their legal case.
Indeed, the advocate should have a working knowledge of the adolescent brain and developmental science, the mass incarceration rates, the poverty, disproportionate minority contact and detention, trauma, mental illness, alcoholism, substance abuse, posttraumatic stress disorder, and family dysfunction. Most children are scared, desperate and confused when they are first arrested.
This is an opportunity not to be missed, as this is when youth are most likely to respond to and are able to receive assistance and guidance. It is a moment of vulnerability in a child’s life where true transformation can occur.
More recently, the stakes with children clients have been raised further. The movement in the United States to treat children as adults, process them in adult criminal courts, and send them to adult prisons — even sending children to die in adult prison with sentences of life without parole — makes it more imperative than ever that juvenile defenders stand up and advocate for their child clients. Often, the juvenile defender is the only one protecting the child’s rights, and the chances that the child will lead a productive and fulfilling life can rise and fall with the quality his representation.
While the traditional juvenile defender focuses solely on resolving the delinquency or criminal charges, the “holistic” defender works with the client and an interdisciplinary team including social workers, other professionals, and family members to address the legal issues and underlying problems.
Utilizing this method to treat the “whole” child, the holistic juvenile defender seeks to discover and actually deal with the root causes of the client’s current status. To the holistic defender, the “whole client condition is crucial, not just case resolution.” The holistic defender shifts “away from a singular concentration on the life of a case toward a broader focus on the life of the client.”2 2 Kyung M. Lee, Comment, Reinventing Gideon v. Wainwright: Holistic Defenders, Indigent Defendants, and the Right to Counsel, 31 Am. J. Crim. L. 367, 371--72 (2004). It is not idealistic to state that, as advocates, we should strive to serve the greater good and long-term effect on the child and community as a whole.
In this article, Part II will set out the background for this discussion by briefly laying out the history of the juvenile court and philosophy; identifying the client population; and addressing adolescent brain development and relevant Supreme Court precedent and the mass incarceration of youth, especially youth of color, in our country.
Part III will identify the role of the juvenile defense counsel in delinquency proceedings. Part IV will provide a guide to the practical application of the client-centered holistic approach to the representation of youth. Part V will then identify some of the realities in holistic legal practice.

II. Background

A. History of Juvenile Court

Even before the juvenile court was ever developed, the difference between child and adult had been recognized in the law in the United States. In common law, William Blackstone defined children under the age of seven as “infants” and therefore incapable of committing a crime, based on their inability to “understand their actions.” English Common Law vaguely defined the age range warranting this distinction as between ages seven and fourteen. However, Blackstone described the doctrine “malitia supplet aetatem” (“malice supplies the age”), wherein the legal capacity was not so defined by the number of years but by the child’s understanding and judgment.3 3 William Blackstone, Commentaries on the Laws of England, Book IV, 23 (1753).
Initially, the United States was strongly influenced by this system of juvenile justice, but began to forge a new path at the beginning of the nineteenth century. Some of the innovations included the New York House of Refuge and the Chicago Reform School, both opened in the early 1800s. These were established as a way to house only alleged juvenile offenders and keep them separate from adults and focus on rehabilitation rather than punitive measures.
The first juvenile court was established in Chicago in 1899. “Parens Patriae” was the newly developed doctrine wherein the state was able to act as the guardian of the child, attempting to serve the “best interests of the child.” Juvenile cases were tried in a civil format that focused on meeting the needs of the child and establishing a plan for them to develop into productive, law-abiding citizens. One method of rehabilitation was to remove the child from home and place him in a reform institution.4 4 ABA Division for Public Education, The History of Juvenile Justice.
In 1967, the United States Supreme Court heard In re Gault, with Justice Fortas penning the majority opinion, which concluded that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.”5 5 387 U.S. 1, 13 (1967). The High Court held that juveniles subject to delinquency charges were entitled to Due Process to include the right to legal counsel. The Court concluded that any child “facing the awesome prospect of incarceration” needed “the guiding hand of counsel at every step in the proceedings against him.”6 6 In re Gault, 387 U.S. 1, 36 (1967).

Congress expressed similar concern over the need to safeguard the rights of children when it enacted the Juvenile Justice and Delinquency Prevention Act in 1974. The Congressional statement of findings specifically observed that “understaffed, overcrowded juvenile courts, probation services, and correctional facilities are not able to provide individualized justice or effective help.”7 7 National Juvenile Defender Center, Gault Forty Years Later, Importance and Impact.

Congress continued to be apprised of the poor quality of juvenile indigent defense when the Act was reauthorized in 1992, and again in 1996. In 2002, along with reauthorizing the Act:

Congress emphasized the importance of lawyers in juvenile delinquency proceedings, specifically noting the inadequacies of both prosecutorial and public defense systems to provide individualized justice or effective assistance.8 8 National Juvenile Defender Center, Gault Forty Years Later, Importance and Impact.

Yet, despite the Supreme Court mandates and Acts of Congress, the very spirit of the landmark decision in Gault seems to have been lost. Numerous studies and reports have shed light on the dark truth that many youth face charges and severe consequences with no legal counsel or ineffective assistance of counsel.

B. Juvenile Defenders’ Clients Are Children

The juvenile defender’s clients are the youth of our country. Youth in modern society experience the whole myriad of emotions on a daily basis, ranging from stress, confusion, anxiety and depression, sometimes all at once, and occurring alongside their fast-paced biological metamorphosis. Between the ages of 16 and 18, youth frequently undergo essentially a life crisis; according to the famed psychologist Erik Erickson there is a “struggle between ego identity and role diffusion.” “Ego identity” is formed when youth develop the full sense of the Self, combining how they see themselves and how they fit in with others. “Role diffusion” occurs when they experience personal uncertainty, spread themselves too thin and place themselves at the mercy of persons who promise to give them a sense of identity that they cannot form for themselves.9 9 Erik H. Erikson, Identity: Youth and Crisis (1968).
Inherent in the experience of adolescence, youth may feel obliged to meet adult expectations and yet may not be able to meet them and concurrently perceive that they are being treated as children, and this can prove confusing and frustrating for them. Some youth are even expected to parent younger siblings and find themselves resentful and overwhelmed, perhaps even having to parent their parents, virtually losing their own childhood in the process.
Adolescents are in a state where they are desirous of more autonomy and simultaneously need the structure and guidance that is usually provided by parents and adult role models. This desire for autonomy, however, can result in a form of rebellion against authority and lead to conflict at school, home or in the community. In fact, unfortunately, this one factor alone puts youth at risk for delinquency and suicide. Suicide is the third leading cause of death in the United States among youth between the ages of 10 and 24.10 10 Center for Disease Prevention and Control, Suicide Prevention: Youth Suicide (2014). The American Psychological Association (APA) has reported that children worry about everything in their lives and the more they worry the more they are at risk for delinquency and suicide.11 11 American Psychological Association Survey Shows Teen Stress Rivals That of Adults, American Psychological Association (2014).
There is a wide body of scientific literature that demonstrates just how ill-equipped young teens are to exercise mature judgment. The American Medical Association’s (AMA’s) amicus curiae brief in support of the child-client in Roper v. Simmons, examines some of the research confirming adolescents’ limited cognitive capacity.12 12 543 U.S. 551 (2005). The AMA explained as follows:

Brain studies establish an anatomical basis for adolescent behavior. Adolescents’ behavioral immaturity mirrors the anatomical immaturity of their brains. To a degree never before understood, scientists can now demonstrate that adolescents are immature, not only to the observer’s naked eyes, but in the very fibers of their brains. … First, adolescents rely for certain tasks, more than adults, on the amygdala, the area of the brain associated with primitive impulses of aggression, anger, and fear. Adults, on the other hand, tend to process similar information through the frontal cortex, a cerebral area associated with impulse control and good judgment. Second, the regions of the brain associated with impulse control, risk assessment, and moral reasoning develop last, after late adolescence …

[A]s teenagers grow into adults, they increasingly shift the overall focus of brain activity to the frontal lobes … [which are responsible for] decision making, risk assessment, ability to judge future consequences, behavioral inhibition, impulse control … and making moral judgments. … Adolescents, as a group, “are risk takers” [and] … “exhibit a disproportionate amount of reckless behavior, sensation seeking and risk taking. … [I]t is statistically aberrant to refrain from such [risk-taking] behavior during adolescence.” In short, teenagers are prone to making bad judgments. Cognitive experts have shown that the difference between teenage and adult behavior is not the adolescent’s inability to distinguish right from wrong. … Rather, the difference lies in what scientists have characterized as “deficiencies in the way adolescents think, an inability to perceive and weigh risks and benefits accurately.”13 13 Brief of the Am. Med. Ass’n et al. as Amici Curiae in Support of Respondent at 4--5, 5--6, 9--11, 15, in Roper v. Simmons, 543 U.S. 551 (2005).

Drawing on social science and common sense, the United States Supreme Court has recognized and officially acknowledged the differences between adults and children which require the justice system to treat children differently, to consider their immaturity and undeveloped brains. Roper v. Simmons abolished the death penalty against minors as a category, expanding the 1988 Thompson v. Oklahoma decision.14 14 Roper v. Simmons, 543 U.S. 551, 570--71 (2005); Thompson v. Oklahoma, 487 U.S. 815, 838 (1988).
Thompson held that children under 16 could not be subject to capital punishment, finding that youth diminishes culpability. The Court found youth to be a mitigating factor because children lack maturity, responsibility, and perspective, and because “offenses by the young also represent a failure of family, school, and the social system, which share responsibility for the development of America’s youth.”15 15 Thompson v. Oklahoma, 487 U.S. 815, 834 (1988), quoting Eddings v. Oklahoma, 455 U.S. 104, 115, n. 11 (1982).
Roper increased the age for children to be protected from the death penalty to 18, finding that killing children was a violation of the Eighth Amendment. The Court discussed three main reasons why young age makes a person less culpable. First, children lack maturity and responsibility, which leads to ill-informed and impulsive decisions and recklessness. This broadly accepted fact of youth is the sound policy behind age restrictions on voting, serving on juries, and getting married. Second, children are more vulnerable to bad influences and outside pressures because they have less control over their own environment. They also have both emotional and legal hurdles in the way of escaping their dysfunctional lives. Third, children have not yet developed as individuals and therefore have a greater capacity for reform.16 16 Roper v. Simmons, 543 U.S. 551, 570--71 (2005); see also Eddings v. Oklahoma, 455 U.S. 104 (1982).
The Roper Court held that youth was not merely a mitigating factor to be presented on a case-by-case basis for a jury to assign its own weight, but rather a trait that requires categorical constitutional protection. The Court acknowledged an international consensus and finally joined every other country in the world in condemning the practice of putting children to death.17 17 Roper v. Simmons, 543 U.S. 551, 570--71 (2005).
Then the Supreme Court decided Graham v. Florida, where the Court determined that a sentence of life without parole for a juvenile convicted of a non-homicide crime violates the Eighth Amendment. Confirming the three main reasons in Roper, the Court held that children are less culpable than adults for the same crimes and that there are “fundamental differences between juvenile and adult minds.”18 18 Graham v. Florida, 130 S. Ct. 2011, 2026 (2010).
It further expanded on the justifications for punishment given in Roper and why they are not applicable to a child. Life without parole cannot be justified by incapacitation because kids can be reformed, and keeping them locked up for their entire lives wrongly assumes they will always be criminally inclined. A sentence to die in prison also forecloses the youth from ever proving that he is reformed, and often circumvents his ability to participate in rehabilitative programs. Finding that a categorical rule is the best protection against cruel and unusual punishment, and again citing an international consensus, the Graham Court abolished juvenile life without parole for non-homicide crimes.19 19 Graham v. Florida, 130 S. Ct. 2011 (2010).
Most recently, the Supreme Court found mandatory life without parole sentences for children convicted of any crime to be unconstitutional in Miller v. Alabama. Again reinforcing the three reasons from Roper why children are less culpable, the Court acknowledged the constitutional difference between children and adults established by recent jurisprudence.20 20 Miller v. Alabama, 132 S. Ct. 2455 (2012).
The Court expanded Graham’s holding to all juvenile offenders, including those convicted of homicide because the “distinctive (and transitory) mental traits and environmental vulnerabilities” of children is not “crime-specific.” Youthfulness is “relevant to the Eighth Amendment and so criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed,” which is why a mandatory penalty scheme that precludes taking youth into account offends the Constitution. “[I]mposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.” The Court explained that the Constitution demands individualized sentencing that takes mitigating factors, including age, into account. Despite strong evidence that a child can be rehabilitated, mandatory life without parole ignores that possibility and thus violates the Constitution.21 21 Miller v. Alabama, 132 S. Ct. 2455, 2465, 2466 (2012).
Roper, Graham, and Miller all used the Eighth Amendment standard of “whether the punishment is contrary to the evolving standards of decency that mark the progress of a maturing society.”22 22 Stanford v. Kentucky, 492 U.S. 361, 369 (1989); see also Miller, 132 S. Ct. 2455, 2463; Graham, 130 S. Ct. 2011, 2021; Roper, 543 U.S. 551, 561. Youth has inherent mitigating qualities. “It is a time of immaturity, irresponsibility, impetuousness, and recklessness. It is a moment and condition of life when a person may be most susceptible to influence and to psychological damage. And its signature qualities are all transient.”23 23 Miller, 132 S. Ct. 2455, 2467; Roper, 543 U.S. 551, 569; Eddings, 455 U.S. 104, 115.
In J.D.B. v. North Carolina, the Supreme Court held that youth was a factor in the custody analysis in terms of Miranda warnings. The reality of childhood, including a heavy reliance on adults, makes it more likely that a reasonable child would not feel free to leave where a reasonable adult might.24 24 J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011).
Reiterating that children are different because “age is far ‘more than a chronological fact,’” the Court found children to be less mature and responsible; to lack experience, perspective, and judgment; to be more vulnerable to outside pressures; and to be easily overwhelmed by authoritative questioning.25 25 J.D.B. v. North Carolina, 131 S. Ct. 2394, 2406 (2011), quoting Eddings v. Oklahoma, 455 U.S. 104, 115 (1982). Children “possess only an incomplete ability to understand the world around them” and must be treated with this fact in mind. “Our history is replete with laws and judicial recognition that children cannot be viewed simply as miniature adults.”26 26 J.D.B. v. North Carolina, 131 S. Ct. 2394, 2403, 2404 (2011), quoting Eddings v. Oklahoma, 455 U.S. 104, 115--16 (1982.
The custody analysis is no exception, and the Court held that the known generalizations about childhood, including that children are rather susceptible to influence and pressure, must be taken into consideration by police and prosecutors.27 27 J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011).
In punishment and in custody, children must be treated differently because they are different. This applies to other stages in criminal proceedings, and it even applies to representation of the child as an attorney. In Graham as well as Miller, the Supreme Court discussed the unique difficulties that come with representing a child defendant and the particular disadvantages children face in court. In Graham, the Court adopted the wisdom expressed by amici: youth mistrust adults and have limited understandings of the criminal justice system and the roles of the institutional actors within it.
Difficulty in weighing long-term consequences, a corresponding impulsiveness, and reluctance to trust defense counsel seen as part of the adult world that a rebellious youth rejects, all can lead to poor decisions by one charged with a crime or delinquent act. These factors are likely to impair the quality of a child-client’s representation. In Miller, the Court found youth to be a disadvantage throughout the criminal process, because a child “might have been charged and convicted of a lesser offense if not for incompetencies associated with youth — for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys.”28 28 Graham v. Florida, 130 S. Ct. 2011 (2010).
The Supreme Court has clearly acknowledged that children face unique challenges when experiencing the justice system and that lawyers must fully understand those challenges in order to provide effective representation. Developing adolescents require a specialized legal approach and attorneys can either empower their clients to make the best decisions or create further obstacles by ignoring the difference between adults and children.
The developmental science and the case law that recognizes it should be the starting place in every juvenile delinquency case, with every child client. It provides the context within which the advocate is working and it sets the stage upon which the players engage. The deeper understanding the lawyer has of this science and law, the more effective advocate she is for her client.

C. Our Youth Face Mass Incarceration in Juvenile and Adult Facilities

In the early 1990s, Princeton criminologist John DiIulio ignited a fear-based socio-political attack on our country’s youth when he wrote:

America is now home to thickening ranks of juvenile “super-predators” — radically impulsive, brutally remorseless youngsters, including ever more pre-teenage boys, who murder, assault, rape, rob, burglarize, deal deadly drugs, join gun-toting gangs and create serious communal disorders. They do not fear the stigma of arrest, the pains of imprisonment or the pangs of conscience. … At core, the problem is that most inner-city children grow up surrounded by teenagers and adults who are themselves deviant, delinquent and criminal.29 29 Bennet, DiIulio & Walters, Body Count: Moral Poverty and How to Win America’s War on Drugs 27 (1996).

In direct response to this reckless call for fear-motivated reaction, nearly every state in our nation enacted some legislation to enable prosecution of kids as adults in more cases and punish children more severely. DiIulio’s theory was inflammatory and provocative, resulting in permanent damage to thousands of youth and was in fact, dead wrong. Rather than rising, the crime rate among juveniles has fallen substantially. From 2002 to 2011, the number of juvenile arrests declined 31%.30 30 U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention, Juvenile Arrests 2011 (2013).
This former White House Aide had an “epiphany” and was enlightened when he actually visited the very inner cities he had written off as beyond hope and irredeemable. DiIulio realized that these children needed support and faith in God, not prisons. In an article with the New York Times in 2001, he regretted his call for the building of more prisons for youth. In 2000, a Human Rights Watch Report blamed the theory of “super-predators” for state initiatives to move juvenile offenders into the adult criminal justice system. Mr. DiIulio responded to that claim by simply stating, “I’m sorry for any unintended consequences … [b]ut I am not responsible for teenagers going to prison.”31 31 Elizabeth Becker, As Ex-Theorist on Young “Superpredators,” Bush Aide Has Regrets, The New York Times, February 9, 2001.
Despite the fallacy being revealed, the mass incarceration continues. In 2011, 1.5 million children were arrested by law enforcement. The number of children detained in delinquency cases increased 7% between 1985 and 2011. One out of every five youth (21%) who is brought before the court with a delinquency case is detained. Two-thirds of youth in detention are held for nonviolent charges. These youth are charged with property offenses, drug offenses, public order offenses, technical probation violations, or status offenses (crimes that wouldn’t be crimes if they were adults, like running away or breaking curfew).32 32 Sarah Hockenberry & Charles Puzzanchera, Juvenile Court Statistics 2011 (2014).
These staggering statistics warrant an even more steadfast challenge to the detention of youth as a matter of course. This practice is unacceptable and the duty of the juvenile defender is to stand up in the face of the ongoing movement to detain and incarcerate more children.
Specifically and perhaps even more importantly, the wave of adult prosecutions of children necessitates a commitment by all juvenile defenders to rail against this misguided abuse of power. On any given night in America, 10,000 children are held in adult jails and prisons. An estimated 250,000 youth are tried, sentenced, or incarcerated as adults every year across the United States. Most of the youth prosecuted in adult court are charged with non-violent offenses.
Research shows that young people who are kept in the juvenile justice system are less likely to re-offend than young people who are transferred into the adult system. According to the Centers for Disease Control and Prevention, youth who are transferred from the juvenile court system to the adult criminal system are approximately 34% more likely than youth retained in the juvenile court system to be re-arrested for violent or other crime.33 33 Jason Ziedenberg, You’re an Adult Now: Youth in Adult Criminal Justice Systems (2011).
The disproportionate application of the law based on race undermines the fundamental fairness of our entire justice system. African-American youth overwhelmingly receive harsher treatment than white youth in the juvenile justice system. African-American youth make up 30% of those arrested while they only represent 17% of the overall youth population. African-American youth are 62% of the youth prosecuted in the adult criminal system and are nine times more likely than white youth to receive an adult prison sentence.
Compared to white youth, Latino youth are 4% more likely to be petitioned, 16% more likely to be adjudicated delinquent, 28% more likely to be detained, and 41% more likely to receive an out-of-home placement. Latino children are 43% more likely than white youth to be waived to the adult system and 40% more likely to be admitted to adult prison.34 34 Jason Ziedenberg, You’re an Adult Now: Youth in Adult Criminal Justice Systems (2011).
Although the federal Juvenile Justice and Delinquency Prevention Act (JJDPA) requires that youth in the juvenile justice system be removed from adult jails or be sight-and-sound separated from other adults, these protections do not apply to youth prosecuted in the adult criminal justice system. The National Prison Rape Elimination Commission found that “more than any other group of incarcerated persons, youth incarcerated with adults are probably at the highest risk for sexual abuse.”35 35 National Prison Rape Elimination Commission, Report 18 (2009).
More than 1 in 10 youth (12%) in state juvenile facilities and large non-state facilities reported experiencing one or more incidents of sexual victimization by another youth or facility staff in the past 12 months or since admission, if less than 12 months.36 36 Allen Beck, Paige Harrison, & Devon Adams, Sexual Violence Reported by Correctional Authorities, 2006 (2007); National Prison Rape Elimination Commission, Report (2009).
Most youth are denied educational and rehabilitative services that are necessary for their stage in development when in adult facilities. A survey of adult facilities found that 40% of jails provided no educational services at all, only 11% provided special education services, and a mere 7% provided vocational training. This lack of education increases the difficulty that youth will have once they return to their communities.37 37 Neelum Arya, State Trends: Legislative Victories from 2005 to 2010 Removing Youth from the Adult Criminal Justice System (2011).
Many children are often placed in isolation, which can produce harmful consequences, including death. Youth are frequently locked down 23 hours a day in small cells with no natural light. These conditions can cause anxiety, paranoia, and create mental disturbance or exacerbate existing mental disorders and put youth at risk of suicide. In fact, youth housed in adult jails are 36 times more likely to commit suicide than are youth housed in juvenile detention facilities.38 38 Campaign for Youth Justice, Jailing Juveniles (2007).
It seems as though the juvenile justice system has distanced itself intolerably far from the earlier goal of rehabilitation. The effects of putting so many children into detention in either youth or adult facilities include a less-educated populace, higher crime rates, and mentally and emotionally scarred individuals returned to the community with inadequate resources or support.
There are many alternatives to detention that should be further explored in order to better serve both the youth involved and society as a whole. There is simply no evidence in favor of locking up so many children. A new study by the Youth Advocate Programs Policy and Advocacy Center (YAP) documents how thousands of youth served by YAP have been served safely at home through community-based programs instead of incarceration. This study finds that more than 8 out of 10 youth remained arrest free and 9 out of 10 were at home after completing their community-based program, at a cost that is a fraction of what it would have cost to incarcerate these youth. Moreover, the report highlights how youth are best served through programs that build on youth strengths, engage their family members and connect them to local community supports.39 39 Douglas Evans & Sheyla Delgado, Most High Risk Youth Referred to Youth Advocate Programs, Inc. Remain Arrest Free and in Their Communities During YAP Participation (2014).
More than ever, this disconnect highlights the importance of juvenile defenders to not only represent their child client’s legal interest but assist them in ancillary areas through referral and interdisciplinary teams in order for them to successfully avoid imprisonment in their present case and avoid future court involvement in their lives.

III. Role of the Juvenile Defender

Whether appointed by the court, taking the case pro bono, acting as a public defender, or hired by the parents to represent the child in delinquency proceedings, the role of the juvenile defense attorney is the same. She is bound by the same ethical obligations she would be to an adult client and, some would argue, an even higher standard of care is warranted when representing children.
Many attorneys, new and experienced, believe that when they represent a child-client in delinquency court, their role is as guardian ad litem, solely to seek and protect the “best interests of the child,” and this is not correct. A juvenile defender is an advocate for the child and the child alone. Therefore, the child’s expressed or “stated interests” are what guides the advocate.40 40 Ellen Marrus, Best Interests Equals Zealous Advocacy: a Not So Radical View of Holistic Representation for Children Accused of Crime, 62 Md. L. Rev. 288 (2003).
While the landmark case of In re Gault laid the framework within which counsel was guaranteed for youth in juvenile delinquency proceedings, the United States Supreme Court failed to set clear parameters on the role of defense counsel in that case.41 41 387 U.S. 1 (1967). Further, the culture of the juvenile court was initially, and still is in many jurisdictions, paternalistic, operating under the parens patriae model. In fact, an advocate who takes on a juvenile delinquency case without knowing and owning their role is likely to be confused and even convinced their role is otherwise.
Efforts since the Gault case to clarify this role have been made and shed light on this dilemma. In 1979 there were the standards issued by the IJA and the ABA (IJA-ABA Standards) which discuss the function of the child’s counsel as follows:

However engaged, the lawyer’s principal duty is the representation of the client’s legitimate interests. In general, determination of the client’s interests in the proceedings, and hence the plea to be entered, is ultimately the responsibility of the client after full consultation with the attorney. Ordinarily, the lawyer should not make or agree to a specific dispositional recommendation without the client’s consent. It is the lawyer’s duty to insist that proper procedure be followed throughout the disposition stage and that orders entered be based on adequate reliable evidence.42 42 American Bar Association Institute of Judicial Administration, Juvenile Justice Standards: Standards Relating to Counsel For Private Parties §§ 3.1(a), 9.4(a) (1980); National Advisory Committee for Juvenile Delinquency Prevention, Standards for the Administration of Juvenile Justice (1980); see also Kristin Henning, Loyalty, Paternalism, and Rights: Client Counseling Theory and the Role of Child’s Counsel in Delinquency Cases, 81 Notre Dame L. Rev. 245, 255--57, 270--280 (2005).

The ABA Model Rules of Professional Conduct also note that when

taking any protective action the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client’s best interests and the goals of intruding into the client’s decision-making autonomy to the least extent feasible, maximizing client capacities and respecting the client’s family and social connections.43 43 American Bar Association Institute of Judicial Administration, Juvenile Justice Standards: Standards Relating to Counsel For Private Parties §§ 3.1(a) (1980); see also Kristin Henning, Loyalty, Paternalism, and Rights: Client Counseling Theory and the Role of Child’s Counsel in Delinquency Cases, 81 Notre Dame L. Rev. 245, 255--57, 270--280 (2005).

In 2012, the National Juvenile Defender Center published National Juvenile Defense Standards, which were promulgated to provide guidance, support, and direction to juvenile defense attorneys and juvenile court stakeholders. The mission of the National Juvenile Defender Center is to ensure excellence in juvenile defense and promote justice for all children. Like the ABA Standards for Criminal Justice: Prosecution and Defense Function,44 44 ABA Standards for Criminal Justice: Prosecution and Defense Function (3d ed., 1993). these standards are not necessarily binding but provide guidelines by which a defense counsel should abide. At the outset, these standards outline the “role of Juvenile Defense Counsel” and indicate “Counsel’s primary and fundamental responsibility is to advocate for the client’s expressed interests.”45 45 National Juvenile Defender Center, National Juvenile Defense Standards § 2.1 (2012).
The Commentary clarifies, however, that this client-centered approach does not mean that a lawyer is to set aside her legal training and go along with the client without a second thought, but rather should educate and inform the child client, allowing him to make an informed choice. This is consistent with the guiding principle as NJDC has outlined in view of the “unique vulnerabilities of youth, it is all the more important that juvenile defense attorneys firmly adhere to their ethical obligations to articulate and advocate for the child’s expressed interests, and to safeguard the child’s due process rights.”46 46 National Juvenile Defender Center, National Juvenile Defense Standards 20 (2012); see also Robin Walker Sterling, Role of Juvenile Defense Counsel in Delinquency Court (2009).
In reality, the juvenile court bench and the stakeholders in the juvenile justice system often misunderstand the juvenile defender’s role and when the advocate stands up for her child client’s rights and demands yet another trial/adjudication, there is often pushback. In the minds of many in the juvenile justice system, the time it takes to provide a youth with due process may clog the docket. And either way, the thought goes, a guilty plea will be beneficial for the child because a guilty plea means the child gets certain services, where if the child is not found guilty, he will not receive those sorely needed services. The juvenile defender then seems to be in the way and they themselves become disillusioned about their role.
This is where the advocate should step up and remind everyone involved about the Sixth Amendment, Gault and the ethical obligation she has to zealously defend her client. It is advisable to set the tone early and often concerning pleading clients “guilty” in order to be provided necessary services or to avoid trial.
An advocate should file written motions outlining the legal issues in a comprehensive manner so the record is clear and all are on notice of the motives of the advocate. All too often, when push comes to shove, cases are dismissed as a result of a failure of proof just because the advocate was willing to fight for her client and the court and prosecution did not want to waste time. In order to ensure the client obtains those necessary services despite the acquittal or dismissal of charges, juvenile defenders should apply on behalf of the child client for such services, if necessary, or at the very least refer him to the appropriate agencies.
Juvenile defense lawyers should form a network with community members and have the local youth agencies screen the clients for suitable programming, access appropriate therapeutic modalities, and provide encouragement for the youth to get involved with creative and productive outlets, such as art or music, and community involvement of any type. This framework fosters self-esteem, empowerment and positive and healthy relationships with adults and authority. The child often turns a corner when given the opportunity to become all they can be; they even start to view the world with a new perspective of hope and promise. This is where the transformation happens.

IV. Holistic Lawyering in Practice

A. Client Interviewing and Counseling

As discussed, developmental science and the U.S. Supreme Court have fully recognized that adolescents’ decision-making may be limited by developmental immaturity. While this is the context within which juvenile defenders practice, it does not provide an exception to the ethical obligation to honor the child-client’s expressed interest. Nor does a child’s poor decision-making constitute grounds for finding that the client suffers from diminished capacity. “A juvenile defender’s abiding purpose is to empower the client to make informed decisions.”47 47 Robin Walker Sterling, Role of Juvenile Defense Counsel in Delinquency Court 8 (2009).

The ABA standards emphasize the active counseling role of the child’s attorney: The child’s lawyer helps to make the child’s wishes and voice heard but is not merely the child’s mouthpiece. As with any lawyer, a child’s lawyer is both an advocate and a counselor for the client. Without unduly influencing the child, the lawyer should advise the child by providing options and information to assist the child in making decisions. The lawyer should explain the practical effects of taking various positions, the likelihood that a court will accept particular arguments, and the impact of such decisions on the child, other family members, and future legal proceedings.48 48 American Bar Association Institute of Judicial Administration, Juvenile Justice Standards: Standards Relating to Pretrial Court Proceedings, Commentary to Standard 7(c) (1980).

This is where the advocate is truly “counsel,” explaining in developmentally-appropriate language the stages of the process, the role of all the players, and the options before him, with both the upside and downside to each. In client-centered advocacy, the first goal is to enable the youth to comprehend their role as the client, and then to empower them to make the decisions relating to their case with the advice of counsel. This comprehension and empowerment is key to the end goal of enhancing the life of the child. The child now has a true advocate who is earning his trust by taking the time to explain the intricacies of the legal process and listening to him, empowering him to make life-altering decisions. This uplifts the entire juvenile justice system, as it serves the greater good as well as the whole child.
Teaching kids about the law and how the justice system works is more than a valuable civic lesson. It has been shown that these informed youth are more likely to be law-abiding citizens as they understand that they too have rights and they feel more a part of the societal realm.49 49 Ellen Marrus, Best Interests Equals Zealous Advocacy: a Not So Radical View of Holistic Representation for Children Accused of Crime, 62 Md. L. Rev. 288 (2003) (citing Kathleen Sylvester, Attorneys Who Teach “Street Law,” Nat’l L.J., at 1 (1983)); see also Marvin Ventrell, Rights & Duties: An Overview of the Attorney-Child Client Relationship, 26 Loy. U. Chi. L.J. 259, 268 (1995).
It is crucial at the outset of establishing the attorney-client relationship with the child for the lawyer to be sensitive to the intellectual capacity of the child; any mental health issues; and effects of trauma as well as the ever present perception of lawyers as authority figures to be feared or ignored by teenagers. Using age or developmentally appropriate language when advising a child client is a great start, but then the conversation must become a participatory dialogue in which the child feels heard and genuinely understands what the lawyer is telling him.
One way to establish this is to check for comprehension by having the child explain it back to the lawyer in his own words. Visual aids are sometimes helpful, especially if the child has learning disabilities. It is imperative to find out as much as possible as soon as possible about the child client to include school attendance and performance, any cognitive or intellectual deficits, prior IQ testing, medical conditions, head injuries, prior trauma, medications past and present, as well as the client’s current mental condition.50 50 Katherine Hunt Federle, The Ethics of Empowerment: Rethinking the Role of Lawyers in Interviewing and Counseling the Child Client, 64 Fordham L. Rev. 1655 (1996).
In order to place these factors into context, the lawyer should have a working knowledge of adolescent brain development, as well as any potential biases including those based on socio-economic status, race, gender, gender identification, and sexual orientation that may be at play in a given case. Counsel must have skill and practice in the communication with youth as clients.
The lawyer should not forget that she was a teenager once too, as was the prosecutor and the judge. The instincts of the human being should not be left at the door, but, to the contrary, the combination of humanity and good lawyering skills are the make-up of a zealous advocate. The juvenile defense lawyer should look for the red flags: any ticks (e.g. excessive eye blinking), the aversion of the eyes, the shaking or trembling of hands, sweating, speaking quickly, or having disorganized thoughts, all of which may simply mean the child is nervous speaking with an ominous authority figure, his lawyer, or the child has experienced some sort of trauma, and these red flags should be noted and addressed accordingly, either with follow-up evaluation or investigation.
Knowing the developmental status of your child client is paramount to reaching a reasonable disposition by which he will understand, agree and comply. In fact, counsel should be well versed, consulting with other experts and professionals when necessary, with regard to developmental science and utilize that informed mindset at all stages of the legal process for her child client.
Further, as occurs frequently in juvenile cases, there may a false confession or coerced statement that will absolutely require an intimate working knowledge of the series of United States Supreme Court cases recognizing the developmental science to be effective in litigating these complex and crucial issues to the benefit of the client. While it is true that the child client will frequently ultimately agree with the attorney’s recommendations, it is important that he knows that he has a say in the matter and is fully informed of his choices. As such, the youth can also be held accountable for his decision to fight the case or take the plea and will be invested in the success of his own case and ultimately, his own life.
The child client and his parents must be advised thoroughly of the duty of confidentiality owed solely to the client as well as the duty of loyalty owed solely to the client. The advocate should always explain the general nature of the proceedings, the charges, and her role as attorney for the child and then politely request that the parents step out of the room so that the lawyer can interview her client and then invite the parents back in afterward to answer questions. The lawyer should then conduct another meeting after each court appearance to discuss what happened and answer any questions. Consistent contact with the child client is necessary to maintain trust and client control and it is helpful to have the parents on board as team members if possible.

B. Interdisciplinary Team Method

Building a team to support and advocate for the child is the most successful model for holistic advocacy. Collaboration with social workers, psychologists, teachers, school counselors, probation officers, mentors, coaches, and other legal experts, such as educational lawyers, immigration specialists, and others is the most effective way to address the whole child.
The child’s parents may be involved, but usually are part of the problem. They must be consulted and brought into the collaborative effort to help get and keep them on the right path.
The child’s teachers are an important resource and also must be brought in to do their part and teach and assist in the development of the youth. Community members from law enforcement to shopkeepers must be bought into the fold to offer their support for the youth at risk and aid in the development of these children. The community as a whole is responsible for the child’s welfare. The community is partially at fault when the child fails their expectations. As the child’s advocate, the juvenile defender leads the way in coordinating, and orchestrating the team effort.
There is a spectrum of parent/guardian involvement ranging from the divorced parents, who do not agree on the tack they should take with regard to their roles in the case, to the single foster parent, who is ambivalent about the course of the case. Regardless of the situation, an effort needs to be made to have the parents/guardians on board, although it may not always prove successful.
Often it helps to have a social worker involved from the outset, and the social worker can act as an intermediary and also advise the parents on possible programs and activities to get the child involved to keep him occupied and out of more trouble, as well as assist him in achieving his goals in the case and his life as a whole. The child, however, must always participate and be encouraged and allowed to have a voice. The way to ensure this as advocates is to listen and instill confidence and earn trust. An advocate should work diligently to serve the client’s best interest and stated interest by identifying the individual’s needs and deficits and networking and zealously advocating for those to be addressed.
The delinquency case is often the first intervention the child has actually had. It is the ideal context for an advocate and the team to finally address not only the delinquency/criminal case at hand but also any related issues and work with clients to help them gain a more favorable disposition and better life outcome. An initial screening and assessment done by an in-house or contracted social worker or mental health specialist is recommended for each child client. The advocate should obtain releases signed by the parent or guardian and permission granted to gain access to school records, special education testing results, IEPs (Individualized Education Plans), and other records, including but not limited to, school counseling records, disciplinary records, any dependency court records, and any and all psychological evaluations and medical records.
These records are an often-overlooked and undervalued tool that could provide a wealth of information not otherwise available, either because the child or parent does not share fully or may not understand how the information is relevant. For example, the fact that a child had a head injury as an infant may not seem important to a child client or parent when he is facing a charge of burglary, but legally there may be a diminished capacity defense or lack of specific intent should the child suffer cognitive deficit as a result of that injury. Further, there is neuro-trauma rehabilitation that the child can receive to help overcome such a deficit and therefore enable him to better assess a situation and learn to avoid risk of long-term consequences for short-term gain.
The team should request any and all discovery related to the case itself and interview the witnesses and investigate the case, just as they would in an adult case. While this is being done, the social worker and mental health component of the team should be networking with the community and the parents to get the child client the counseling or health care he needs to cope with any trauma he may have endured leading to, during, and subsequent to the arrest. As the lawyer maintains contact with the child client, it should be outlined how the child’s cooperation with the case plan of action will not only help him in court — as it will impress the prosecutor and judge — but also will set him up for success in the long term, providing him with the life skills he needs to navigate the complexities of adulthood.
An advocate should secure the disposition that the client wants. This disposition should be in alignment with the client’s expressed interests, as well as further the advancement of the child in his life to be able to avoid trouble with the law, and to potentially encourage him to be accountable to himself and the community. One way to frame this advancement is to assist the youth in self-regulating his own behavior, utilizing resources to his advantage, including educational and youth engagement programs. For example, a mentor program where the youth can be mentored and then become a mentor. This builds self-esteem and leadership skills.
It is precisely at this time, when the child client is the most willing to do whatever it takes to stay out of detention or avoid being committed to a youth or adult facility, that the client needs the most zealous legal advocate and the most compassionate team members who are researching and securing the necessary services to place the kid on the right path.

Universally, the goal of every criminal defense lawyer is to get the best case disposition for her client. Indeed, securing an acquittal, less jail time, or avoiding prison altogether will always be a core goal of any criminal defense lawyer. Holistic representation does not change this fundamental and compelling value. But the added goal in the holistic defense model is to make a long-term difference in the life of a client.51 51 Robin G. Steinberg, Beyond Lawyering: How Holistic Representation Makes for Good Policy, Better Lawyers, and More Satisfied Clients, 30 N.Y.U. Rev. L. & Soc. Change 625, 626--27 (2006).

V. Realities in Practice

A. Is the Client Competent?

The assertion that adolescents have an enhanced predilection for risky behavior is uncontroverted.

The temporal gap between the arousal of the socio-emotional system, which is an early adolescent development, and the full maturation of the cognitive control system, which occurs later, creates a period of heightened vulnerability to risk taking during middle adolescence.52 52 Laurence Steinberg, Adolescent Development and Juvenile Justice, 5 Ann. Rev. Clinical Psychol. 459, 466 (2009).

The link between allocation of decision-making capabilities to the less advanced sections of the brain and increased risk taking is also well documented:

[P]atterns of development in the prefrontal cortex, which is active during the performance of complicated tasks involving long-term planning and judgment and decision-making, suggest that these higher order cognitive capacities may be immature well into late adolescence.53 53 Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence, 58 Am. Psychologist 1009, 1013 (2003).

Lawyers need be particularly sensitive to the level of developmental maturity of their child clients and have the client professionally evaluated if any doubt arises as to his competence to proceed. The professional should be an expert familiar with adolescence, a forensic psychologist or psychiatrist, possibly a neuropsychologist, and someone who is familiar with the competence standards in the jurisdiction and as set forth in Dusky v. United States.54 54 362 U.S. 402 (1960).
In Dusky, the United States Supreme Court set forth the definition of competency as “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding of the proceedings against him.” While it is true that adult clients’ competency is usually questioned due to a significant mental health disability, with adolescents, developmental immaturity may in fact cause the child to be incompetent.55 55 Thomas Grisso, et al., Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants, 27 L. & Hum. Behav. 333 (2003).
Most states do not, however, recognize this reality. Careful consideration must be given to the options once a doubt as to competency is declared, and one such option might be that the lawyer and team attempt to delay the proceedings and educate the client and eventually, with natural maturation and development, the child may become competent. An advocate should ensure that, once an expert is consulted, they are provided with any and all pertinent information supporting the concern as to competency. Should the expert opine that the child is incompetent, even if based solely on developmental immaturity, only then should a competency hearing be sought and held.
If the client is found to be incompetent, a request for dismissal should be made immediately, and civil commitment should be avoided if possible. Should the court not dismiss the case, counsel should again request dismissal after passage of time if it appears that the child is not becoming competent.

B. Mandatory Reporting Requirements and Duty of Confidentiality

The interdisciplinary team approach may have to overcome some significant and seemingly contradictory goals within various professional disciplines. For example, the lawyer’s role is to provide zealous advocacy and further the client’s stated interest. The mental health professional is furthering the client’s best interests, and this may not always coincide with the client’s wishes.
For example, suppose a child charged with committing a crime informs his team members that he is in fact guilty of the offense, but wants to fight the case and stay home with his parent, despite the abuse he is suffering there, claiming it is better than being sent to live in a group home. He clearly indicates that he wants this information to be kept confidential. Ethically, the lawyer’s duty is to keep the information confidential and to try to get an acquittal or, at the very least, reach a disposition where the child gets to stay home, assuming the disposition is otherwise agreeable to the client. On the other hand, the social worker may understand their professional responsibility is to report the abuse and attempt to ensure the client’s safety. Here, the attorney-client privilege trumps the mandatory reporting scheme.
As such, any and all professionals working on the interdisciplinary team for the client would be held to the attorney-client privilege as any agent of the attorney. My recommendation is that there be a written agreement to that effect for the team members to sign at the outset of the representation. Should the social worker or mental health professional not be willing to agree to those parameters, the interdisciplinary team approach will break down and be ineffective as the client will likely not be fully forthcoming in speaking with team members.56 56 Ellen Marrus, Best Interests Equals Zealous Advocacy: a Not So Radical View of Holistic Representation for Children Accused of Crime, 62 Md. L. Rev. 288 (2003).

C. What is the Definition of “Success”?

In holistic practice, “success” is not just getting the case dismissed pre-trial or winning the trial, but affecting change in the child’s life. While it seems at first blush that this lofty goal is far beyond the bounds of the oath of an attorney to support or uphold the Constitution, it remains as the only right way to advocate for the whole child.
Is it a “success” then if a 14-year-old client is caught stealing and the charges are dismissed because his confession was thrown out due to a constitutional violation that the lawyer raised? Yes. Is it even more of a “success” if the charges are thrown out and the client now goes to counseling and is dealing with his learning disability and has after school activities like rock climbing and is volunteering at the humane society? Of course.
The first example lacks the holistic approach, and the second example represents both the client’s stated interest, and also addresses the client’s best interest by providing him with tools to keep him on track. The holistic approach benefits the child and society, reducing recidivism and increasing the chance of this child becoming a productive member of the community.

VI. Conclusion

Holistic client-centered representation addresses the client’s immediate legal circumstances and incorporates the objective of assisting the client to live as a law-abiding, productive member of the community. Holistic advocacy addresses psychological, emotional, familial, and medical conditions. It recognizes the impact of the client’s age, education, socio-economic condition, race, ethnicity, gender or gender identification, and sexual orientation on the client’s path in life. The ultimate goal of holistic representation is to prevent recidivism, and therefore serves the greater good, the interest of community as a whole. In turn, this supports the advocate in arguing for alternatives to incarceration and furthers the client’s interest to remain free. For the most part, defenders are sympathetic toward their clients, especially children. These youth are more than the just “offenders” or “defendants” and are certainly not “super-predators.” Consequently,
For the most part, defenders are sympathetic toward their clients, especially children. These youth are more than the just “offenders” or “defendants” and are certainly not “super-predators.” Consequently,

the defenders’ vantage point affords analyses more penetrating, compassionate, and thorough than one rendered by a professional less interested in finding out why the client got into trouble in the first place. In contrast, a less empathetic defender “might overlook the humanity of her client — his positive attributes, the background which may have led him to commit crimes, and the multiple needs that transcend his current criminal case.” An empathetic lawyer is, in effect, a more effective lawyer.57 57 Kyung M. Lee, Comment, Reinventing Gideon v. Wainwright: Holistic Defenders, Indigent Defendants, and the Right to Counsel, 31 Am. J. Crim. L. 367, 394 (2004), quoting Charles Ogletree, Jr., Beyond Justification: Seeking Motivations to Sustain Public Defenders, 106 Harv. L. Rev. 1239, 1273 (1993).

The lawyer who brings her humanity into the courtroom and genuinely cares for the client and his future, will in turn work harder and more diligently to advocate for him and will do more than provide legal advice.

“When she cares about the client as an individual, not only does she want to assist him through the complex maze of our legal system, but she also wants him to succeed; as a result, her defense is zealous.”58 58 Kyung M. Lee, Comment, Reinventing Gideon v. Wainwright: Holistic Defenders, Indigent Defendants, and the Right to Counsel, 31 Am. J. Crim. L. 367, 394 (2004), quoting Charles Ogletree, Jr., Beyond Justification: Seeking Motivations to Sustain Public Defenders, 106 Harv. L. Rev. 1239, 1273 (1993).

This is perhaps the first time, and hopefully not the last time, this child will see himself as worthy of fighting for. Who knows, maybe this child may even become a lawyer and advocate for some other kid someday.

Footnotes

1Attorney, Independent Consultant on Juvenile Justice, Founder and Executive Director of the Center for Juvenile Justice, and Incoming Director of the Project for the Innocent and Associate Clinical Professor at Loyola Law School, August, 2015. The author would like to thank Samantha Gurrentz, a recent law graduate from Tulane University, School of Law, and now a Colorado-licensed attorney, for her legal research and contribution to this article, and Peter Sauer, Attorney from Cooley, LLP, for his unwavering support and editing of this article.
2Kyung M. Lee, Comment, Reinventing Gideon v. Wainwright: Holistic Defenders, Indigent Defendants, and the Right to Counsel, 31 Am. J. Crim. L. 367, 371--72 (2004).
3William Blackstone, Commentaries on the Laws of England, Book IV, 23 (1753).
4ABA Division for Public Education, The History of Juvenile Justice.
5387 U.S. 1, 13 (1967).
6In re Gault, 387 U.S. 1, 36 (1967).
7National Juvenile Defender Center, Gault Forty Years Later, Importance and Impact.
8National Juvenile Defender Center, Gault Forty Years Later, Importance and Impact.
9Erik H. Erikson, Identity: Youth and Crisis (1968).
10Center for Disease Prevention and Control, Suicide Prevention: Youth Suicide (2014).
12543 U.S. 551 (2005).
13Brief of the Am. Med. Ass’n et al. as Amici Curiae in Support of Respondent at 4--5, 5--6, 9--11, 15, in Roper v. Simmons, 543 U.S. 551 (2005).
14Roper v. Simmons, 543 U.S. 551, 570--71 (2005); Thompson v. Oklahoma, 487 U.S. 815, 838 (1988).
15Thompson v. Oklahoma, 487 U.S. 815, 834 (1988), quoting Eddings v. Oklahoma, 455 U.S. 104, 115, n. 11 (1982).
16Roper v. Simmons, 543 U.S. 551, 570--71 (2005); see also Eddings v. Oklahoma, 455 U.S. 104 (1982).
17Roper v. Simmons, 543 U.S. 551, 570--71 (2005).
18Graham v. Florida, 130 S. Ct. 2011, 2026 (2010).
19Graham v. Florida, 130 S. Ct. 2011 (2010).
20Miller v. Alabama, 132 S. Ct. 2455 (2012).
21Miller v. Alabama, 132 S. Ct. 2455, 2465, 2466 (2012).
22Stanford v. Kentucky, 492 U.S. 361, 369 (1989); see also Miller, 132 S. Ct. 2455, 2463; Graham, 130 S. Ct. 2011, 2021; Roper, 543 U.S. 551, 561.
24J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011).
25J.D.B. v. North Carolina, 131 S. Ct. 2394, 2406 (2011), quoting Eddings v. Oklahoma, 455 U.S. 104, 115 (1982).
26J.D.B. v. North Carolina, 131 S. Ct. 2394, 2403, 2404 (2011), quoting Eddings v. Oklahoma, 455 U.S. 104, 115--16 (1982.
27J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011).
28Graham v. Florida, 130 S. Ct. 2011 (2010).
30U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention, Juvenile Arrests 2011 (2013).
31Elizabeth Becker, As Ex-Theorist on Young “Superpredators,” Bush Aide Has Regrets, The New York Times, February 9, 2001.
32Sarah Hockenberry & Charles Puzzanchera, Juvenile Court Statistics 2011 (2014).
35National Prison Rape Elimination Commission, Report 18 (2009).
36Allen Beck, Paige Harrison, & Devon Adams, Sexual Violence Reported by Correctional Authorities, 2006 (2007); National Prison Rape Elimination Commission, Report (2009).
38Campaign for Youth Justice, Jailing Juveniles (2007).
40Ellen Marrus, Best Interests Equals Zealous Advocacy: a Not So Radical View of Holistic Representation for Children Accused of Crime, 62 Md. L. Rev. 288 (2003).
41387 U.S. 1 (1967).
42American Bar Association Institute of Judicial Administration, Juvenile Justice Standards: Standards Relating to Counsel For Private Parties §§ 3.1(a), 9.4(a) (1980); National Advisory Committee for Juvenile Delinquency Prevention, Standards for the Administration of Juvenile Justice (1980); see also Kristin Henning, Loyalty, Paternalism, and Rights: Client Counseling Theory and the Role of Child’s Counsel in Delinquency Cases, 81 Notre Dame L. Rev. 245, 255--57, 270--280 (2005).
43American Bar Association Institute of Judicial Administration, Juvenile Justice Standards: Standards Relating to Counsel For Private Parties §§ 3.1(a) (1980); see also Kristin Henning, Loyalty, Paternalism, and Rights: Client Counseling Theory and the Role of Child’s Counsel in Delinquency Cases, 81 Notre Dame L. Rev. 245, 255--57, 270--280 (2005).
45National Juvenile Defender Center, National Juvenile Defense Standards § 2.1 (2012).
46National Juvenile Defender Center, National Juvenile Defense Standards 20 (2012); see also Robin Walker Sterling, Role of Juvenile Defense Counsel in Delinquency Court (2009).
48American Bar Association Institute of Judicial Administration, Juvenile Justice Standards: Standards Relating to Pretrial Court Proceedings, Commentary to Standard 7(c) (1980).
49Ellen Marrus, Best Interests Equals Zealous Advocacy: a Not So Radical View of Holistic Representation for Children Accused of Crime, 62 Md. L. Rev. 288 (2003) (citing Kathleen Sylvester, Attorneys Who Teach “Street Law,” Nat’l L.J., at 1 (1983)); see also Marvin Ventrell, Rights & Duties: An Overview of the Attorney-Child Client Relationship, 26 Loy. U. Chi. L.J. 259, 268 (1995).
50Katherine Hunt Federle, The Ethics of Empowerment: Rethinking the Role of Lawyers in Interviewing and Counseling the Child Client, 64 Fordham L. Rev. 1655 (1996).
51Robin G. Steinberg, Beyond Lawyering: How Holistic Representation Makes for Good Policy, Better Lawyers, and More Satisfied Clients, 30 N.Y.U. Rev. L. & Soc. Change 625, 626--27 (2006).
52Laurence Steinberg, Adolescent Development and Juvenile Justice, 5 Ann. Rev. Clinical Psychol. 459, 466 (2009).
53Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence, 58 Am. Psychologist 1009, 1013 (2003).
54362 U.S. 402 (1960).
55Thomas Grisso, et al., Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants, 27 L. & Hum. Behav. 333 (2003).
56Ellen Marrus, Best Interests Equals Zealous Advocacy: a Not So Radical View of Holistic Representation for Children Accused of Crime, 62 Md. L. Rev. 288 (2003).
57Kyung M. Lee, Comment, Reinventing Gideon v. Wainwright: Holistic Defenders, Indigent Defendants, and the Right to Counsel, 31 Am. J. Crim. L. 367, 394 (2004), quoting Charles Ogletree, Jr., Beyond Justification: Seeking Motivations to Sustain Public Defenders, 106 Harv. L. Rev. 1239, 1273 (1993).
58Kyung M. Lee, Comment, Reinventing Gideon v. Wainwright: Holistic Defenders, Indigent Defendants, and the Right to Counsel, 31 Am. J. Crim. L. 367, 394 (2004), quoting Charles Ogletree, Jr., Beyond Justification: Seeking Motivations to Sustain Public Defenders, 106 Harv. L. Rev. 1239, 1273 (1993).

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Discovery and Confidentiality Agreements http://www2.stetson.edu/advocacy-journal/discovery-and-confidentiality-agreements/ http://www2.stetson.edu/advocacy-journal/discovery-and-confidentiality-agreements/#comments Fri, 27 Mar 2015 01:17:04 +0000 http://www2.stetson.edu/advocacy-journal/?p=372

Kathryn Elizabeth Lee1 1 Kathryn Lee is an attorney at Harmon, Woods, Parker & Abrunzo in Tampa, Florida. Her work focuses on trial support and appellate practice in cases involving catastrophic personal injuries, spinal cord injuries, brain injuries, complex insurance coverage disputes, invasions of privacy, and cases involving allegations that an insurance company has breached the duties owed to its customers.

2 Stetson J. Advoc. & L. 105 (2015)

I. Introduction

One of the most frustrating and daunting tasks that a civil litigator may confront is negotiating a confidentiality order. Unless a lawyer regularly drafts and negotiates contracts, the potential for a misstep is high. However, with an understanding of a few structural elements, the lawyer can easily break down the topic down into component parts.
The purpose of this article is not to provide a form document to follow blindly, but to review the elements that a practitioner may want to include in a confidentiality order or agreement, and the reasoning for each. With an understanding of these elements, the language of an order or agreement will be easier to negotiate. A well-thought out and planned confidentiality order can easily facilitate and speed up the discovery process.
More important to keep in mind is that, due to the eternally flexible nature of litigation, each and every contingency for confidentiality is not, and cannot be, addressed. Instead, a better understanding of the purpose and need for confidentiality agreements and orders, as well as the substantive and procedural elements of an agreement or order, will help the many puzzle pieces fit together into something workable.
Because they have their own set of purposes and pitfalls, this article will not cover confidentiality clauses in settlement agreements or releases. Instead, it will focus only on confidentiality agreements and orders in civil discovery based in Florida law.

II. Purpose of Confidentiality

Why confidentiality?

Litigation is supposed to be a search for the truth. But our system is an adversarial one and the importance of confidentiality is relentlessly ingrained in every lawyer. Conversations with clients are protected by the attorney-client privilege. The lawyer’s own musings are protected by the doctrine of work product. Negotiations during court-ordered mediation are privileged. Sometimes it seems that the entire purpose of pre-trial discovery in civil suits is to keep information hidden from opposing counsel. The Florida Rules of Civil Procedure temper a litigator’s inclination to hide things,2 2 Surf Drugs, Inc. v. Vermette, 236 So. 2d 108, 111 (Fla. 1970); Florida Rules of Civil Procedure. but even then, there is still opportunity for obfuscation. In fact, civil discovery disputes can be the least civil of all interactions between lawyers.
Some civil litigators approach discovery the way that the Rules seem to contemplate and encourage: each side shares all relevant information with the other side, and the parties can make a fair evaluation of the other’s position, leading to mediated and agreed settlements where appropriate.3 3 Surf Drugs, Inc. v. Vermette, 236 So. 2d 108, 111 (Fla. 1970). However, most discovery requests first prompt the other side to respond with an objection instead of freely providing all the documents requested.
The practical rule of discovery is that, if a privilege can be asserted by opposing counsel, it will be. For the lawyer asserting privileges, or the protection of the doctrine of work product, or claiming that something is confidential, it is an exercise in protecting and advocating for the client. For the lawyer whose discovery requests prompt these responses, it is an exercise in wondering what is being hidden, or questioning why obtaining something the Florida Rules of Civil Procedure authorizes seems like pulling teeth. After all, if the other side strenuously objects, then there must be something worth finding out. Or, maybe not. Sometimes a client just does not want business-sensitive information getting out in the public realm.
Sometimes, there is a happy medium in the clash between the right to protect things that should generally be kept private and what an opponent wants and needs to know. A confidentiality order entered by the trial court, or a confidentiality agreement between counsel, can facilitate discovery for the purposes of litigation while keeping the information in limited circulation and out of the public eye.
If an opponent says that they think their employee manual is a trade secret, and the requesting party just needs to know if the manual included directions on how to handle a situation like the one being litigated, it may simply not be worth the time to litigate whether or not the manual really is a trade secret before being able to get a copy of it in discovery. In that kind of case, as in a slip-and-fall injury case, counsel can usually agree on terms without the court’s involvement. On the other hand, sometimes the claim that a client list is a trade secret is the core element of the case, as when the claim is a violation of a non-compete agreement. In those cases, the strategy of having the court resolve the issue may be a necessary step in proving a case.

Is the subject of the proposed agreement or order permissible?

Under Florida law, lawyers are not permitted to keep some kinds of information from the public record. Section 90.506 of the Florida Evidence Code allows for the protection of trade secrets, as long as doing so does not conceal a fraud or work an injustice.4 4 Fla. Stat. § 90.506 (2014). The term “trade secret” is not defined in the Evidence Code, but it is defined elsewhere in Florida Statutes. A trade secret is a piece of information, document or data that has independent value by not being known by others who could gain economic value from it, and that is maintained as secret by its owner.5 5 Fla. Stat. § 688.002(4) (2014). Federal statutes define trade secrets in a very similar manner, incorporating the same elements of economic value and previous withholding of the information from the public.6 6 18 U.S.C. §1839(3) (2012).
While the definitions of “trade secret” have inherent factual considerations that can certainly be litigated, the admonition to “not conceal a fraud or work an injustice” of the Evidence Code is even more open to interpretation. In some cases, the application of the fraud exception to the trade secret privilege is clear, for example, in commercial or contract litigation when there is an affirmative defense of fraud.7 7 Becker Metals Corp. v. West Florida Scrap Metals, 407 So. 2d 380 (Fla. 1st DCA 1981). In other cases, a judge will need to decide if the privilege can be claimed or if the exception applies.8 8 See, e.g., Rare Coin-it, Inc. v. I.J.E., Inc., 625 So. 2d 1277, 1278--79 (Fla. 3d DCA 1993).
Florida’s “Sunshine in Litigation Act” also puts limits on what lawyers can keep out of the public record. A confidentiality agreement that conceals a public hazard, as defined by statute, is “void, contrary to public policy, and may not be enforced.”9 9 Fla. Stat. § 69.081(4) (2014). “Public hazard” is defined as “an instrumentality, including but not limited to any device, instrument, person, procedure, product, or a condition of a device, cause injury.”10 10 Fla. Stat. § 69.081(2) (2014). Agreements in cases that may touch on public hazards should acknowledge that a judicial determination of the existence of a public hazard can invalidate an agreement created for the purpose of facilitating discovery.
The statutory definition of public hazard has been mainly applied in products liability cases, where the hazard is clear and tangible, like in a tire failure case.11 11 Jones v. Goodyear Tire & Rubber Co., 871 So. 2d 899 (Fla. 3d DCA 2003). Asbestos, another real product, has also been found to be a public hazard.12 12 ACandS, Inc. v. Askew, 597 So. 2d 895 (Fla. 1st DCA 1992). The Fourth District Court of Appeals has found that the concept of a public hazard, as defined in the Sunshine in Litigation Act, does not extend to economic fraud that causes only financial loss. Instead, it must be a tangible danger to public health or safety. For example, improper credit practices are not considered public hazards under the Act.13 13 Stivers v. Ford Motor Credit Co., 777 So.2d 1023 (Fla. 4th DCA 2000). Similarly, insurance practices that may cause financial harm are not a public hazard, at least under the Sunshine in Litigation Act.14 14 State Farm Fire and Cas. Co. v. Sosnowski, 830 So. 2d 886 (Fla. 5th DCA 2002). If confronted by a request from an opponent to keep a “public hazard” confidential, a lawyer has a very good reason to not agree and also to seek the court’s intervention.
Other types of information that counsel may want to keep confidential are less debatable or open to interpretation. In addition to trade secrets, Florida law makes many types of documents and information confidential and thus not discoverable. Many of these things are listed in Rule 2.516 of the Florida Rules of Judicial Administration, which describes what information can be filed under seal.15 15 Fla. R. Jud. Admin., Rule 2.516 (2014). Other categories are scattered throughout the statutes, such as identifying information about the victim of a sexual battery.16 16 Fla. Stat. § 794.024 (2014). If these protected categories of documents need to be disclosed in litigation, a confidentiality order or agreement is the best way to balance the need for the information with the right to keep some information private.

When to consent to confidentiality?

As with any discovery dispute, the Florida Rules of Civil Procedure, and — by extension — Florida’s judges, expect opposing counsel to attempt to resolve disagreements between themselves wherever possible.17 17 Fla. R. Civ. P. 1.380(a)(2). If the outcome of a trial court’s potential consideration is clear, counsel should not waste their own time, or the time and resources of the court, and should reach their own agreement. But the lawyer’s ethical duties to their client mean that if there is an argument that can be made in good faith, it should be presented.
Trade secrets are illustrative of what is expected when it comes to consent. The process a trial court will undertake when considering a claim of trade secret protection is clear.18 18 See, e.g., American Exp. Travel Related Services, Inc. v. Cruz, 761 So. 2d 1206, 1208-09 (Fla. 4th DCA 2000); Rare Coin-it, Inc. v. I.J.E., Inc., 625 So.2d 1277, 1278--79 (Fla. 3d DCA 1993). First, the court must decide if the information at issue meets the definition of trade secret, usually by conducting an in camera review. As with any privilege, the party claiming the privilege as a basis to resist discovery bears the burden of proving that the privilege applies.
If the court determines that it is a trade secret, the party asking for the discovery must show that the information is reasonably necessary to the litigation. The party resisting discovery must make a showing of good cause to continue protection of the information so that, if the information is ordered produced, the trial court can order it produced under terms that take into account the interests of all involved parties and the public.19 19 Fla. Stat. § 90.506 (2014). As with any other litigation situation, sometimes the facts are undisputed and the result predictable enough that no objection should be made.
Relevancy is still the touchstone of discovery. A party cannot obtain information that is not reasonably calculated to lead to the discovery of admissible evidence merely by agreeing to keep it confidential.20 20 McDonald’s Restaurants of Fla., Inc. v. Doe, 87 So. 3d 791, 794 (Fla. 2d DCA 2012). But, if the information is relevant, it can be discovered even if it is statutorily confidential, as long as the information is protected by an appropriate confidentiality order.21 21 See, e.g., In re J.B., 101 So.3d 407 (Fla. 2d DCA 2012); Homeward Residential, Inc. v. Rico, 110 So.3d 470 (Fla. 4th DCA 2013). However, the reverse is not necessarily true. Information subject to a previously entered confidentiality order in different litigation in a different state is not automatically subject to discovery in later litigation.22 22 Residence Inn by Marriott v. Cecile Resort Ltd., 822 So. 2d 548, 550 (Fla. 5th DCA 2002).
Outside of consideration by the court, litigants who reach a confidentiality agreement through counsel cannot use that agreement as a basis to expand the scope of discovery, even if it the court gives its imprimatur by converting it to an order. The normal rules still apply to determine the proper scope of discovery. For example, it would be error to allow parties to use a confidentiality order as the basis to compel a response to an otherwise impermissible request for information from a non-party.23 23 Inrecon v. Village Homes at Country Walk, 644 So. 2d 103 (Fla. 3d DCA 1994).
A lawyer also does not have to accept a previously-entered confidentiality agreement. Different lawyers and different courts may have agreed to or ordered confidentiality under different circumstances and different law. In ACandS, Inc. v. Askew, the First District Court of Appeals refused to enforce a confidentiality order entered in a prior asbestos litigation where the order made no mention of the good cause for its entry, the scope of what was covered, and purported to limit the parties to the agreement to use the information only for the purposes of the single litigation case. As a non-final order, no court had an obligation to enforce it where to do so would cover up a public hazard.24 24 ACandS, Inc. v. Askew, 597 So. 2d 895 (Fla. 1st DCA 1992). The lesson here is that litigators should never blindly use nor accept the argument that something has “always been done this way.”

When is the timing right for a confidentiality agreement?

After a lawyer has decided that a confidentiality order is appropriate or inevitable, the timing of when it should be written down is dependent on a number of variables, including the type of confidential information at stake, the venue, the individual judge’s preferences, and client desires. In a case where the information to be kept confidential is the identity of a sexual battery, the defendant likely will not be able to even answer the complaint until the identity is disclosed. A confidentiality agreement or order will need to be one of the first things accomplished in that kind of case.
Lawyers will sometimes know in advance that the litigation will involve claims of confidentiality in discovery. Business litigation can involve client lists. Patent litigation may involve secret processes. Cases that involve franchise terms may require keeping those terms confidential. Premises liability cases may involve requests for policy and procedure manuals. When these sorts of requests can be anticipated, the question and content of a confidentiality order or agreement should be raised as soon as possible.
Federal courts expect that counsel will discuss this type of discovery issue as part of counsels’ Rule 16 case management conference. The Southern District of Florida requires, as part of Local Rule 16.1(b)(3)(H), that the Joint Proposed Scheduling Order include “any proposed use of the Manual on Complex Litigation,” which in turn includes a proposed confidentiality agreement.25 25 Fla. R. USDCTSD Gen Rule 16.1(b)(3)(H). The Middle District’s rule is similar. Local Rule 3.05(c)(2)(C)(iii) suggest that the initial discovery plan may include agreements relating to the “handling of confidential information.”26 26 Fla. R. USDCTMD Gen Rule 3.05(c)(2)(C)(iii). Florida’s complex litigation rule includes “the necessity for a protective order to facilitate discovery” as something that must be considered during an initial case management conference.27 27 Fla. R. Civ. P. 1.201(b)(1)(G).
In other cases, the issue can be deferred until it is certain that confidential information will be requested or that the claim will be raised. For example, a party can assert a trade secret privilege claim in response to a discovery request. The party that first sought the information can then decide how to handle that claim of privilege by taking several possible actions, including:
  • proposing a confidentiality agreement to facilitate production;
  • filing a motion to compel to have the trial court determine the validity of the claimed privilege and, if appropriate, the terms of a confidentiality order; or
  • abandoning the discovery request.
Sometimes a party making a discovery request can anticipate that a claim of trade secret may be raised, but will want to wait and see if the opposing party will make the claim. This may happen with requests for policy and procedure manuals from a corporate party. In some companies, these documents are closely held secrets, and in others, they will be produced without objection. If a requesting party knows from experience that a particular discovery request will prompt a confidentiality objection, the discovery request itself can include an affirmative statement of willingness to agree to terms. This type of request can reduce delays in the time it will take to obtain the materials.

III. Primary Elements of a Confidentiality Order or Agreement

Court order or written agreement?

If counsel have agreed that confidentiality is required, it can be accomplished through either a court order or a written agreement. Florida Rule of Civil Procedure 1.280(c) specifically states that a trial court may enter a protective order “that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.”28 28 Fla. R. Civ. P. 1.280(c). To obtain such an order, a party can file a Motion for Entry of Confidentiality Order, with or without a proposed order attached as an exhibit. After the motion is filed, counsel can agree to an order, or the parties can take their disputes to the trial court for resolution.
The parties also can informally negotiate and reach a Confidentiality Agreement. If they desire, that Agreement can then be adopted by a court order. Nothing in the law prefers an order over an agreement. The law of Florida has long been that stipulations between counsel are enforceable by trial courts. For instance, in EGYB, Inc. v. First Union Nat’l Bank of Fla, a 1994 case said that:

It is well settled that a stipulation entered into between parties in good faith and without fraud, misrepresentation or mistake is binding on the parties and the court.29 29 630 So. 2d 1216, 1217 (Fla 5th DCA 1994).

How well settled? The case it cited (and that is still good law) is from 1939.30 30 Dunscombe v. Smith, 190 So. 796, 799 (1939). Similarly, the Middle District of Florida permits agreements between counsel to be enforced as if they were orders of the court if the agreements are enforced in writing, per the local rule.31 31 Capital Corp. Mergers & Acquisitions, Inc. v. Arias Co., Ltd, Case No. 6:04-cv-158-Orl-28JGG (M.D. Fla. May 4, 2006).
Ultimately, the decision whether to have a Confidentiality Order or a Confidentiality Agreement depends on the preference of clients and their counsel, the need for documentation in the case, or the level of trial court oversight of discovery. Another factor in cases with the potential for public attention may be the need to inform the press or other non-parties, through the very entry and docketing of a Confidentiality Order, of the existence of judicial oversight over the confidential nature of discovery. Litigants and their attorneys can agree to conduct discovery in all sorts of ways, with the understanding that some conduct would not withstand challenge by another interested party.

In camera review

Where all relevant parties agree to a confidentiality order or agreement, there is no need to have a trial court conduct an in camera review of the information at issue. The issues arise when there is an objection by a party or by a non-party, or a dispute over the applicability of a claimed privilege.32 32 First Call Ventures, LLC v. Nationwide Relocation Srvcs, Inc., 127 So. 3d 691 (Fla. 4th DCA 2013). Where there is anything less than complete agreement, the parties should ask the trial court to perform a complete review of the competing interests, up to and including an in camera review.33 33 Gulfcoast Surgery Center, Inc. v. Fisher, 107 So. 3d 493 (Fla. 2d DCA 2013).
Objections can come from an unexpected angle. Even where a party may desire to keep information confidential, there may be a reason that requires a different course of action during litigation. In Goodyear Tire & Rubber Co. v. Schalmo, the Second District Court of Appeal granted certiorari in favor of Goodyear, where the trial court entered a confidentiality order that did not provide for review of the documents. Goodyear was the party from whom documents were sought. Goodyear based its position on a concern arising from a prior finding that the matter at issue, defective tires, related to a public hazard. The Second District found that a trial court cannot enter a confidentiality order without first determining whether the discovery at issue relates to a public hazard, which in turn might require a determination of whether the topic was a public hazard in the first place.34 34 Goodyear Tire & Rubber Co. v. Schalmo, 987 So. 2d 142 (Fla. 2d DCA 2008).

Good cause

Any confidentiality order or agreement must include a recitation of the good cause for its entry. This can be a simple reference to a statutorily-described privilege, such as a trade secret. A confidentiality order is, at its procedural basis, a protective order. A protective order can cover more items and be more broad than the trade secret privilege provided for in § 90.506 of the Florida Statutes.35 35 Fla. Stat. § 90.506.
In Auto-Owners Ins. Co. v. Totaltape, Inc., the Middle District of Florida found that the trade secret privilege did not apply to the insurance company’s claims manuals, because the insured was not a competitor who would benefit from the insurance company’s proprietary information. However, even though the information did not strictly meet the definition of trade secret, the insurance company that was resisting discovery had shown good cause for entry of a protective order under Rule 26(c). Because of the nature of the documents, a confidentiality order was still required.36 36 Auto-Owners Ins. Co. v. Totaltape, Inc., 135 F.R.D. 199 (M.D. Fla. 1990).
Following this logic, litigants do not need to agree or acquiesce to a claim that the discovery at issue is actually a protected trade secret. Instead, the agreement or order must recite sufficient predicate facts that justify entry of a protective order. In many cases, this can be a recitation that the information is merely claimed to be trade secret, or that there is a business purpose in keeping the information out of the public record. If the agreement or order does not show good cause, it can be challenged by third parties,37 37 ACandS, Inc. v. Askew, 597 So. 2d 895, 898 (Fla. 1st DCA 1992); In re Alexander Grant & Co. Litigation, 820 F. 2d 352 (11th Cir. 1987). which could lead to a waiver.38 38 S & I Investments v. Payless Flea Market, Inc., 10 So.3d 699 (Fla. 4th DCA 2009). A showing of good cause is sufficient to keep the press from intervening to obtain discovery materials.39 39 McCarthy v. Barnett Bank of Polk County, 876 F.2d 89 (11th Cir. 1989).

Scope of the agreement or order

When drafting a confidentiality order or agreement, counsel should consider, if possible, whether it will be limited to a particular document, category of documents, or response to a single discovery request. If the agreement is being executed in response to a specific concern, it may be simpler to draft an agreement that refers only to that one set of concerns. Fewer open-ended eventualities will need to be addressed in the content of the agreement.
The concern is that, if an order or agreement is entered referencing a particular discovery request, then anything subsequently requested which might also be confidential would require a separate agreement or written amendment to the existing agreement. A practical compromise is to negotiate an agreement that acknowledges that particular request has been made, and a particular claim of confidentiality has been asserted in response, and therefore the agreement is necessary. It can then go on to address that other similar requests may be made, and will be subject to the same terms. This will prevent multiple agreements from being confused in a single case, while allowing for flexibility and expansion of its terms.
In the same concern for flexibility in the future, consider whether to draft a unilateral or a bilateral agreement, or one comprehensive to all parties. Even if there are no pending discovery requests served to a party that invoke confidentiality, there may be some in the future. If counsel is taking the time to obtain a confidentiality order or agreement, it should be broad enough to encompass reasonably foreseeable future situations. Finally, the negotiation process for an agreement that imposes the same terms on all parties generally results in more equitable and fair terms.

Third parties’ rights to confidentiality

Non-parties to the litigation have just as much right as a party to seek a protective order for confidential information, and arguably, they have a greater right to protection from unwarranted intrusion. If a confidentiality agreement is made to facilitate discovery from a non-party, all the parties to the litigation need to be part of the agreement. One party who obtains discovery is obligated to share that information with the other parties in the litigation, and arguably, that other party does not have to agree to the same terms of an agreement.
In some cases, it might be appropriate to have an agreement with a non-party and treat the non-party differently from the litigants. Carelessly grouping a non-party into the same category as litigants in a confidentiality agreement could give the non-party a contractual right or legal ability to obtain copies of confidential information produced by the parties.

Acknowledgment of confidentiality

Many confidentiality agreements or orders require that the signatories to the agreement be able redisclose the information to experts or other non-parties if they meet certain conditions, such as the execution of a consent to be bound by the agreement. This consent is not necessary; however, it is understandably common.40 40 Capital One, N.A. v. Forbes, 34 So.3d 209 (Fla. 2d DCA 2010). The decision to require consent or acknowledgement may turn on the level of sensitivity of the information at issue, or the need to track accountability for breach. A clause that says something to the effect that “each person who receives confidential information in furtherance of this litigation must be notified of this agreement and agree to abide by it” is convenient, but may not provide the sureties that the other side may want. This is a point to be negotiated.
The real questions are how far counsel’s signature on the agreement or order will go, and how many people it can realistically bind to the terms agreement. Is it just the attorney signing? All attorneys in the firm? Employees and members of the attorney’s firm? Experts? Consultants? Mock jurors? Copying services? Court reporters? Videographers? Outside data-processing services where there is no existing broad-scope confidentiality agreement? While there is a satisfying level of accountability in having every single person who is permitted to review the documents have to execute an acknowledgment, it is not practical. The agreement or order should specify who may have access to the documents, and with what level of acknowledgement. The easiest way to define this in an agreement is to list the categories of people with whom counsel can share information without acknowledgment, like all the members of a firm, and to whom it can be disclosed only on verbal or written acknowledgment, like experts and consultants.
Be very cautious of agreements or orders that require a party to get pre-approval for redisclosure, or to notify and provide signed consents for each person to whom the information is redisclosed at the time of execution. Without good cause, these provisions are an incursion into counsel’s work product and ability to consult with non-testifying experts.
The agreement also should not infringe on the attorney-client relationship. Provisions that do not allow counsel to share information with their clients are highly disfavored.41 41 Volpe v. US Airways, Inc., 184 F.R.D. 672 (M.D. Fla. 1998). There are limited situations where in-house corporate counsel, who is involved in business matters that touch on the confidential information in their regular activities, might appropriately be excluded from reviewing the information.42 42 Sony Computer Entertainment Am., Inc. v. Nasa Electronics Corp., 249 F.R.D. 378 (S.D. Fla. 2008). In such a case, judicial review of that provision is strongly recommended.

Limitations on use of confidential information

In the same way that a confidentiality agreement or order should not impinge on the attorney-client relationship or the attorney’s work-product, it should not presume to tell a party how they may use the information. Counsel should not agree to a term that has the function of an order in limine, or that prevents a possible use of the information in the litigation. Generally, agreements should include a term that permits use of the confidential information in conjunction with the pending litigation, and any related appeals, in any way, with disclosure limited as provided in the agreement. The application of the agreement or order to related lawsuits is something that should at least be considered at the time of initial negotiation. If a confidentiality agreement or order is intended to apply to several consolidated or related lawsuits, the agreement should expressly account for each of the lawsuits.
A term that limits the use of the confidential information to a single lawsuit is not improper. Sanctions have been awarded and upheld against trial counsel that used financial information, obtained under a confidentiality order in one lawsuit, in a subsequent, unrelated garnishment.43 43 Roberts v. Bonati, 133 So.3d 1212 (Fla. 2d DCA 2014). Although it might seem strange to prevent a lawyer from using knowledge that is already in their head from one lawsuit for the benefit of another client, that analysis does not take into account the fact that the knowledge was gained under a limited set of circumstances, balancing the interests present in the first litigation. Those same circumstances may not exist in the later litigation.

Sharing provisions

A point of contention in negotiation of confidentiality orders and agreements is often over ability to share the information obtained with other attorneys and litigants involved in other claims with the same party. In a negotiated agreement, it is rare that all parties would agree to a sharing provision. A party that insists on a sharing provision will also likely not prevail if the issue has to be resolved by the trial judge. At least two different Florida District Courts of Appeal have invalidated sharing provisions,44 44 Cordis Corp. v. O’Shea, 988 SO. 2d 1163 (Fla. 4th DCA 2008). even when the provision would have required those to whom the information was given to be bound by its terms.45 45 Wal-Mart Stores East, L.P. v. Endicott, 81 So.3d 486 (Fla. 1st DCA 2011).
The general justification for invalidating open-ended and non-specific sharing provisions is that the showing of need for the discovery and the balancing of interests under § 90.506 of the Florida Statutes is different from case to case.46 46 Fla. Stat. § 90.506 (2014). Under this analysis, it is possible that a sharing provision could be proper in a very narrow and limited set of facts. However, given the apparent reluctance of Florida courts to allow discovery in one case to control discovery in other cases, any attempt at a sharing provision should be done carefully and with consideration of a severability clause.

IV. Secondary Considerations

Burden and manner of designating confidential information

Counsel need not specify in their agreement or order a particular manner of designating information or documents as confidential. Sometimes including it in the negotiation process can help define expectations for how the process will go, and including a provision in the agreement will give guidance to non-attorney staff who will likely be the ones to implement the agreement.
In terms of file maintenance, an electronic watermark, unique Bates number identifier or stamp on every confidential document, or statement associated with each interrogatory answer, is the most convenient. However, unless there is concern over compliance, it does not need to be spelled out in the agreement. If not included in the agreement or order, sometimes a statement in a cover letter that certain categories of documents are to be maintained as confidential can technically suffice. This may not be ideal in many situations, because then there is nothing on the document itself that would let a party know if it is confidential, or would require constant referencing against an index.
It might be more work for the producing party to stamp or watermark each document, as opposed to writing a separate letter or sending a separate index, but a document-by-document approach is consistent with the idea that the burden of establishing entitlement to confidentiality should fall on the party seeking to protect confidentiality. It also makes sense that each document which is allegedly confidential should be individually reviewed and stamped.

Provisions for errors

In a comprehensive agreement, counsel may want to specifically provide how to handle errors in disclosures. For example, what if documents are produced, and someone realizes that they should have been designated as confidential? An agreement or order does not need to acknowledge this kind of possibility. If an order or agreement doesn’t make mention of the possibility, a knowledgeable lawyer would likely successfully argue that Florida Rule of Civil Procedure 1.285, Inadvertent Disclosure of Privileged Materials, governing return of inadvertently-produced privileged documents provides a process by default.47 47 Fla. R. Civ. P. 1.285.
The rule itself gives practical deadlines: ten days after a party learns of the inadvertent production to make the claim, and twenty days to challenge the assertion of privilege. If the facts of a particular case could be served with different timeframes, or even a requirement that once produced, confidentiality is waived, the parties to the order or agreement should make their intentions clearly known in the written terms of the document.

Use of confidential information during depositions

Once confidential information has been subject to discovery, it is foreseeable that counsel from either side may want to utilize it during a deposition or as exhibits to the deposition. Many agreements and orders are silent on the use of materials in depositions, and an explicit terms is arguably not necessary. If there is a term defining the scope of the agreement as allowing a party to use information in furtherance of the lawsuit, that would cover use of the information in deposition.
In some cases, however, explicit rules about depositions could be useful. Once information is disclosed in a deposition, without a protective order in place, a waiver has occurred.48 48 S&I Investments v. Payless Flea Market, Inc., 10 So.3d 699 (Fla. 4th DCA 2009). To avoid this situation, some of the following conditions might be appropriate:
  • if an answer is to be protected as confidential, it must be designated as such during the deposition or within a time certain after receipt of the transcript or with an errata sheet;
  • the deposition must be labeled by the court reporter as confidential;
  • parties will not attach confidential documents as exhibits to the depositions, but will only identify those materials by identifier numbers;
  • a party must notify the producing party in advance if they intend to show confidential information to a witness; or
  • that portions of, or entire, depositions may be identified as confidential information.
Finally, objections to questions during depositions are not permitted on trade secret grounds.
Counsel may also want to address dissemination of depositions containing confidential information. The agreement or order can provide that the status of a deposition transcript will be designated on the record at the end of each deposition, or within a set time. It could also pre-designate any pages of a deposition that contain confidential information as confidential and prohibit redistribution of those portions in advance.

Filing confidential information

The agreement or order should not attempt to limit use of confidential information, in documents, interrogatory answers, or depositions, in furtherance of the case. It should not restrict a party’s right to introduce relevant information into the record.49 49 Rocket Group, LLC v. Jatib, 114 So. 3d 398 (Fla. 4th DCA 2013). In absence of a provision stating otherwise, the Florida Judicial Administration Rule 2.420 allows filing of documents with the Clerk under seal.50 50 Florida Judicial Administration Rule 2.420. If the confidential information is a small bit of data that need not be in the record, Judicial Administration Rule 2.425 allows for redactions.51 51 Florida Judicial Administration Rule 2.425.
Be cautious entering into agreements that provide for a different process than in these Rules. In state court, confidential information can also be presented to the court in camera, and sometimes the need to file the information can be avoided.
In federal court, it is a bit different. In addition to the constraints of motion practice, a party must seek leave of court to file a document under seal. The party filing the motion has to show good cause as to why the document should be sealed and kept away from public access. Proving entitlement to confidentiality is generally not something a party can properly show regarding its opponent’s documents. When negotiating a confidentiality agreement for federal litigation, the party that wants to keep the material confidential should have to file the motion.
Finally, although it may be tempting to include a provision requiring an opponent to agree to allow any motion to file under seal to be filed as an Agreed Motion, a pre-contracted constraint on the ability to take a position in litigation is not ideal.

Challenges to designations

As previously explained, a party seeking to claim confidential protections for information or documents has the burden of proving entitlement to the privilege or protection. A confidentiality order or agreement should not flip that burden of proving actual entitlement to the privilege. Many, if not most, confidentiality agreements are entered into for the purpose of facilitating discovery. If the agreement allows a party to designate documents as confidential without review and oversight by a magistrate or court, that self-designation should not control the actual privileged status of the document or information.
An agreement or order should not require a party that wants to challenge a designation to immediately file a motion establishing why it is not protected. That flips the burden of proof — a result counsel should not invite. If the agreement is made to facilitate discovery, those considerations can be deferred to pre-trial evidentiary motions. Alternatively, the agreement could attempt to spell out a specific process of notification of challenge to designation, who has to file a motion, and the effect of the outcome of the motion. Be wary of a provision that tries to limit use of a document if a court denies a motion to file under seal, as is used in federal courts.

Trial exhibits

The use of confidential information at trial usually cannot be successfully considered or negotiated during discovery. The requesting party is at a disadvantage and does not know what they will receive. Neither party knows exactly what their trial strategy will be. Therefore, approach provisions governing use of confidential information at trial cautiously. The simplest way to facilitate discovery is to acknowledge that counsel will address trial use of confidential information during the exhibit exchange or in pre-trial evidentiary motions.

Post-trial handling

Another provision not necessary — but often included — in an agreement covering discovery relates to the question of what happens to the information at the end of the case. If the agreement or order includes any discussion of the return or destruction of confidential information, make sure that the agreement provides that access to the information can continue through the litigation, post-judgment enforcement, and the final resolution of any related appeals. If there is a potential for related litigation, like a declaratory action, that should also be considered.
After stating when the need for the confidential information is done, the agreement or order should define what is to be done with it. The specifics can be deferred, providing that the producing party will have to request in writing what they want done with the information at the end of the case.
Some types of information are more sensitive to some clients. If the agreement does not defer the specifics for later delineation, consider the following questions:
  • At the conclusion of the litigation, is all confidential information to be returned?
  • Can copies be maintained by counsel for record keeping purposes in files?
  • Certification that it was destroyed? Which party can exercise the option?
  • If confidential information is to be returned, who pays shipping to have it returned?
  • Is work product that references the confidential information permitted to be retained and maintained as confidential, or should it be destroyed?
The options are not limited, and can be dependent on the nature of the information and the progress of the case. If there are details for destruction outlined in the agreement, consider including those details as defaults, and allowing for alterations “as agreed in writing by all parties to this agreement.”

Continuing confidentiality

A confidentiality agreement or order may provide that the confidential nature of the information continues past the end of the litigation. This can be accomplished through defining the scope of permissible use of the information or through an explicit statement that the intent is that the information will remain confidential, except as otherwise provided by court order or the agreement of the parties.
Consider carefully how restrictive this term should be if it does not include an exception clause. A trial court does not maintain jurisdiction to modify interlocutory orders, including confidentiality orders, after entry of judgment. A confidentiality order cannot be modified during post-judgment collection proceedings.52 52 Oliver v. Stone, 940 So. 2d 26 (Fla. 2d DCA 2006). An order still can be enforced and sanctions can be granted for violations of a court order.53 53 Roberts v. Bonati, 133 So. 3d 1212 (Fla. 2d DCA 2014).
In cases touching on public hazards, as defined by the Sunshine in Litigation Act, there is a question as to the legality of continuing to maintain information as confidential if the mechanism of injury is determined to be a public hazard. A term that provides for a per se result, without consideration of public hazards, may not be enforceable.
The question of the ongoing validity of a confidentiality agreement can be tested, by the parties or by an intervenor, through a motion to set the agreement or order aside under the Sunshine in Litigation Act, which carries with it an entitlement to due process on evidence of status as a public hazard.54 54 See, e.g., E.I. DuPont De Nemours & Co. v. Lambert, 654 So.2d 226 (Fla. 2d DCA 1995). Parties to a confidentiality agreement may not want to limit the ability to challenge the propriety of claims of confidentiality if evidence shows that it would cover up a public hazard.

Liquidated damages

When drafting confidentiality orders counsel may want to resist the desire to include a liquidated damages clause. In addition to being subject to challenge, such a clause could end up being a limiting factor. The flexibility of a court’s enforcement mechanisms through sanctions and contempt will fit any potential situation better than whatever can be negotiated before the documents are even produced.55 55 Sony Computer Entertainment Am., Inc. v. NASA Electronics Corp., 249 F.R.D. 378 (S.D. Fla. 2008). Moreover, a sanction in the form of actual damages in compensation for the results of a violation of a confidentiality order has been upheld and acknowledged in appellate case law in Florida.56 56 Roberts v. Bonati, 133 So. 3d 1212, 1217 (Fla. 2d DCA 2014).

V. Conclusion

Although this article is not meant to provide a form fit for all circumstances, the considerations discussed above should help with understanding why certain terms or elements may or may not need to be included in a confidentiality agreement. If the structural and procedural elements are understood, any previously drafted document will be an excellent springboard, including those available in federal trial court orders.
Confidentiality has an important place in discovery. Handled properly, it does not obstruct discovery and does not hide the truth. Handled improperly, casually, or without understanding future effects, it can cause problems for both parties seeking to protect their confidential information and parties seeking to discover it.

Footnotes

1Kathryn Lee is an attorney at Harmon, Woods, Parker & Abrunzo in Tampa, Florida. Her work focuses on trial support and appellate practice in cases involving catastrophic personal injuries, spinal cord injuries, brain injuries, complex insurance coverage disputes, invasions of privacy, and cases involving allegations that an insurance company has breached the duties owed to its customers.
2Surf Drugs, Inc. v. Vermette, 236 So. 2d 108, 111 (Fla. 1970); Florida Rules of Civil Procedure.
3Surf Drugs, Inc. v. Vermette, 236 So. 2d 108, 111 (Fla. 1970).
4Fla. Stat. § 90.506 (2014).
5Fla. Stat. § 688.002(4) (2014).
618 U.S.C. §1839(3) (2012).
7Becker Metals Corp. v. West Florida Scrap Metals, 407 So. 2d 380 (Fla. 1st DCA 1981).
8See, e.g., Rare Coin-it, Inc. v. I.J.E., Inc., 625 So. 2d 1277, 1278--79 (Fla. 3d DCA 1993).
9Fla. Stat. § 69.081(4) (2014).
10Fla. Stat. § 69.081(2) (2014).
11Jones v. Goodyear Tire & Rubber Co., 871 So. 2d 899 (Fla. 3d DCA 2003).
12ACandS, Inc. v. Askew, 597 So. 2d 895 (Fla. 1st DCA 1992).
13Stivers v. Ford Motor Credit Co., 777 So.2d 1023 (Fla. 4th DCA 2000).
14State Farm Fire and Cas. Co. v. Sosnowski, 830 So. 2d 886 (Fla. 5th DCA 2002).
15Fla. R. Jud. Admin., Rule 2.516 (2014).
16Fla. Stat. § 794.024 (2014).
17Fla. R. Civ. P. 1.380(a)(2).
18See, e.g., American Exp. Travel Related Services, Inc. v. Cruz, 761 So. 2d 1206, 1208-09 (Fla. 4th DCA 2000); Rare Coin-it, Inc. v. I.J.E., Inc., 625 So.2d 1277, 1278--79 (Fla. 3d DCA 1993).
19Fla. Stat. § 90.506 (2014).
20McDonald’s Restaurants of Fla., Inc. v. Doe, 87 So. 3d 791, 794 (Fla. 2d DCA 2012).
21See, e.g., In re J.B., 101 So.3d 407 (Fla. 2d DCA 2012); Homeward Residential, Inc. v. Rico, 110 So.3d 470 (Fla. 4th DCA 2013).
22Residence Inn by Marriott v. Cecile Resort Ltd., 822 So. 2d 548, 550 (Fla. 5th DCA 2002).
23Inrecon v. Village Homes at Country Walk, 644 So. 2d 103 (Fla. 3d DCA 1994).
24ACandS, Inc. v. Askew, 597 So. 2d 895 (Fla. 1st DCA 1992).
25Fla. R. USDCTSD Gen Rule 16.1(b)(3)(H).
26Fla. R. USDCTMD Gen Rule 3.05(c)(2)(C)(iii).
27Fla. R. Civ. P. 1.201(b)(1)(G).
28Fla. R. Civ. P. 1.280(c).
29630 So. 2d 1216, 1217 (Fla 5th DCA 1994).
30Dunscombe v. Smith, 190 So. 796, 799 (1939).
31Capital Corp. Mergers & Acquisitions, Inc. v. Arias Co., Ltd, Case No. 6:04-cv-158-Orl-28JGG (M.D. Fla. May 4, 2006).
32First Call Ventures, LLC v. Nationwide Relocation Srvcs, Inc., 127 So. 3d 691 (Fla. 4th DCA 2013).
33Gulfcoast Surgery Center, Inc. v. Fisher, 107 So. 3d 493 (Fla. 2d DCA 2013).
34Goodyear Tire & Rubber Co. v. Schalmo, 987 So. 2d 142 (Fla. 2d DCA 2008).
35Fla. Stat. § 90.506.
36Auto-Owners Ins. Co. v. Totaltape, Inc., 135 F.R.D. 199 (M.D. Fla. 1990).
37ACandS, Inc. v. Askew, 597 So. 2d 895, 898 (Fla. 1st DCA 1992); In re Alexander Grant & Co. Litigation, 820 F. 2d 352 (11th Cir. 1987).
38S & I Investments v. Payless Flea Market, Inc., 10 So.3d 699 (Fla. 4th DCA 2009).
39McCarthy v. Barnett Bank of Polk County, 876 F.2d 89 (11th Cir. 1989).
40Capital One, N.A. v. Forbes, 34 So.3d 209 (Fla. 2d DCA 2010).
41Volpe v. US Airways, Inc., 184 F.R.D. 672 (M.D. Fla. 1998).
42Sony Computer Entertainment Am., Inc. v. Nasa Electronics Corp., 249 F.R.D. 378 (S.D. Fla. 2008).
43Roberts v. Bonati, 133 So.3d 1212 (Fla. 2d DCA 2014).
44Cordis Corp. v. O’Shea, 988 SO. 2d 1163 (Fla. 4th DCA 2008).
45Wal-Mart Stores East, L.P. v. Endicott, 81 So.3d 486 (Fla. 1st DCA 2011).
46Fla. Stat. § 90.506 (2014).
47Fla. R. Civ. P. 1.285.
48S&I Investments v. Payless Flea Market, Inc., 10 So.3d 699 (Fla. 4th DCA 2009).
49Rocket Group, LLC v. Jatib, 114 So. 3d 398 (Fla. 4th DCA 2013).
50Florida Judicial Administration Rule 2.420.
51Florida Judicial Administration Rule 2.425.
52Oliver v. Stone, 940 So. 2d 26 (Fla. 2d DCA 2006).
53Roberts v. Bonati, 133 So. 3d 1212 (Fla. 2d DCA 2014).
54See, e.g., E.I. DuPont De Nemours & Co. v. Lambert, 654 So.2d 226 (Fla. 2d DCA 1995).
55Sony Computer Entertainment Am., Inc. v. NASA Electronics Corp., 249 F.R.D. 378 (S.D. Fla. 2008).
56Roberts v. Bonati, 133 So. 3d 1212, 1217 (Fla. 2d DCA 2014).

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Protecting Innocent Infringers of Naturally Reproducing Patented Organisms http://www2.stetson.edu/advocacy-journal/protecting-innocent-infringers-of-naturally-reproducing-patented-organisms/ http://www2.stetson.edu/advocacy-journal/protecting-innocent-infringers-of-naturally-reproducing-patented-organisms/#comments Fri, 27 Mar 2015 01:16:53 +0000 http://www2.stetson.edu/advocacy-journal/?p=371

William Brees1 1 William Brees is an intellectual property attorney, with an LL.M. in intellectual property, currently working at Maxey Law Offices, P.L.L.C. in St. Petersburg, Florida.

2 Stetson J. Advoc. & L. 179 (2015)

I. Introduction

In Diamond v. Chakrabarty, the U.S. Supreme Court decided that genetically modified organisms are patentable subject matter under 35 U.S.C. 101.2 2 Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980); 35 U.S. Code § 101. The Court later confirmed, in J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., that genetically modified, sexually reproduced plants are also patentable subject matter.3 3 J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U.S. 124, 145 (2001). Since then, genetically modified organisms have grown in acceptance, while genetically modified plants have become the standard, rather than an exception, for some types of crops in the United States.4 4 U.S. Department of Agriculture Economic Research Service, Adoption of Genetically Engineered Crops in the United States.
Genetically modified organisms, as referred to in this article, include any living organism which has had its genetic makeup altered. The most common form of genetic modification is known as transgenic or recombinant DNA technology and involves incorporating genes from one organism into a different organism in order to add a desired trait to the host organism.5 5 Genetically modified organism (GMO), Encyclopaedia Britannica. A very common form of a genetically modified organism is a plant, such as corn or soybean, that has been modified to be resistant to an herbicide. The largest supplier of this type of genetically modified plant is Monsanto, which brands these products as “Roundup Ready” because the plants are not affected by Monsanto’s popular glyphosate herbicide Roundup. These herbicide resistant plants provide a benefit to farmers because weeds and other plants can be cleared from a field by spraying the herbicide while not damaging the crops in any way.6 6 Alex Platt, Center for Food Safety v. Vilsack: Roundup Ready Regulations, 37 Ecology L.Q. 773, 774 (2010).
Genetically modified crops are generally sold under a license which restricts the use of the patented gene to the first generation of seeds. The farmers who purchase these crops are not permitted to save the seed and replant the crop the next season because the patent rights extend to subsequent generations of the plants.7 7 Amanda L. Kool, Halting Pig in the Parlor Patents: Nuisance Law as a Tool to Redress Crop Contamination, 50 Jurimetrics J. 453, 466 (2010). This is in stark contrast to the standard operating procedure of farmers in the past, which included saving seed from each crop to plant the following season.8 8 Marcella Downing-Howk, The Horns of a Dilemma: The Application of the Doctrine of Patent Exhaustion and Licensing of Patented Seed, 14 San Joaquin Agri. L. Rev. 39, 42 (2004).
Farmers who purchased genetically modified seed under a license are not the only ones who must worry about future generations of genetically modified seed, however. Plants are living organisms which produce pollen and seeds and are able to reproduce without any human action. Because pollen may be spread great distances, plants as far as several miles away from the original plant may express the genes of the original plant, including those which are patented. For this reason, a farmer may have his plants cross-pollinated with genes covered by a patent, and thereby become an unknowing and innocent infringer of the patent.9 9 David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179 (2010--11).
As genetically modified crops have grown in acceptance, the policing efforts of the patent holders for the genes containing the modified traits have expanded. The patent holders routinely enter farms and test crops, often without the farmers knowledge.10 10 Amanda L. Kool, Halting Pig in the Parlor Patents: Nuisance Law as a Tool to Redress Crop Contamination, 50 Jurimetrics J. 453, 484 (2010). See also E. Freeman, Settling the Matter --- Part 5. Because of the ability of sexually reproduced plants to spread genetically modified traits without any actions on the part of humans, many farmers who do not wish to utilize genetically modified plants are nevertheless fearful of the potential threat of litigation for patent infringement.11 11 David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 180 (2010--11).
This fear is evidenced by the fact that on March 29, 2011, an assortment of seed businesses, family farmers, and agricultural organizations representing over 270,000 members filed suit against Monsanto Company. The suit alleged that plants grown from genetically modified seeds produced by or under licensing from Monsanto were very likely to contaminate plaintiffs crops. It sought declaratory judgment that plaintiffs would not be liable for patent infringement if that did in fact occur. Plaintiffs alleged patent invalidity, patent exhaustion, unenforceability due to misuse, equitable estoppel, and trespass. Plaintiffs further sought to invoke equity as a protection against liability, claiming Monsanto would suffer no economic injury from the contamination of plaintiffs crops.12 12 Organic Farmers And Seed Sellers Sue Monsanto To Protect Themselves From Patents On Genetically Modified Seed: Preemptive Action Seeks Ruling That Would Prohibit Monsanto From Suing Organic Farmers and Seed Growers If Contaminated By Roundup Ready Seed.
A 2010 United States Supreme court case, Monsanto Co. v. Geertson Seed Farms, paved the way for the litigation by declaring that farmers who risked economic loss due to the threatened contamination of their crops had standing to bring suit against the deregulation of types of genetically modified plants.13 13 Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743 (2010). The Court of Appeals for the Federal Circuit upheld a ruling by the United States District Court for the Southern District of New York that there was no justiciable case or controversy and dismissed for lack of jurisdiction due to Monsanto’s binding assurances that it will not take legal action against growers whose crops might inadvertently contain traces of Monsanto biotech genes (because, for example, some transgenic seed or pollen blew onto the grower’s land).14 14 Organic Seed Growers & Trade Assn v. Monsanto Co., 718 F.3d 1350, 1352 (Fed. Cir. 2013). While these statements were satisfactory for the Federal Circuit, they do not convey the same feeling of satisfaction to farmers who have the real possibility of receiving a threat of legal action based on unintentional infringement of patented genetically modified organisms, as evidenced by the Organic Seed Growers & Trade Association’s further pursuit of the case to the Supreme Court, which denied certiorari in the case.15 15 No. 13--303: Petition for a Writ of Certiorari.
The first part of this article will discuss the existing defenses that innocent infringers may use to defend themselves against liability for patent infringement and the reasons why these defenses are inadequate. The following section will provide a proposed modification to the patent statutes to provide innocent infringers with immunity from legal remedies for patent infringement under certain circumstances. The reasoning behind the proposed modification will also be discussed.

II. Existing Defenses

A. Patent Invalidity

The plaintiffs in Organic Seed Growers and Trade Assn. v. Monsanto Co. alleged that Monsanto’s patents are invalid for failure to meet the usefulness requirement. One argument raised for invalidity was based on a District of Massachusetts case from 1817 in which Justice Story wrote that an invention must not be “injurious to the well-being, good policy, or sound morals of society,” and that “a new invention to poison people … is not a patentable invention.”16 16 Lowell v. Lewis, 15 F. Cas. 1018 (C.C.D. Mass. 1817). Complaint, Organic Seed Growers and Trade Assn. v. Monsanto Co., ¶ 4 (quoting U.S. Const, Art. I, § 8, cl. 8 and 35 U.S.C. § 101). The plaintiffs supported this argument by studies that state increased use of pesticides — both enabled by the use of the genetically modified plants and required by the development of pesticide resistant weeds through the increased use of the pesticide — cause health problems for humans and animals.17 17 Complaint, Organic Seed Growers and Trade Assn. v. Monsanto Co., ¶¶ 113--20.
The plaintiffs’ view, however, does not represent the current reasoning used by the courts for utility. In In re Fisher, the Federal Circuit recognized the Supreme Court’s abrogation of Justice Story’s requirement for utility. The question of utility now is very much concerned with “practical” or “real world” utility; the question of morals does not enter into the analysis.18 18 In re Fisher, 421 F.3d 1365, 1371 (Fed. Cir. 2005); Brenner v. Manson, 383 U.S. 519, 534--35 (1966). Monsanto has proven that the patented invention does have a real effect of increasing the plants’ resistance to a specific herbicide.19 19 David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 184 (2010--11). With this being the case, even if plaintiffs’ studies were taken as a true representation of the dangers of genetically modified plants, the patents would not be affected because the tests do nothing to disprove the utility shown for the invention.

B. Patent Exhaustion

Patent exhaustion is a doctrine which provides that “the initial authorized sale of a patented item terminates all patent rights to that item.”20 20 Tessera, Inc. v. International Trade Comn, 646 F.3d 1357, 1369 (Fed. Cir. 2011) (quoting Quanta Computer, Inc. v. LG Elecs., Inc., 553 U.S. 617, 625 (2008)). In cases involving genetically modified plants, the question that is the deciding factor is often whether or not the sale was authorized. The patent holders sell the seeds under a license agreement which forbids retention and replanting of seeds and also forbids sale of the seeds for replanting. The Court of Appeals for the Federal Circuit and the United States Supreme Court have recently addressed the effect of each of these license agreements on patent exhaustion.21 21 Monsanto Co. v. Scruggs, 459 F.3d 1328, 1333 (Fed. Cir. 2006); Bowman v. Monsanto Co., 133 U.S. 1761, 1768 (2013); Monsanto Co. v. Bowman, 657 F.3d 1341 (Fed. Cir. 2011).
Monsanto Co. v. Scruggs involved soybeans which are genetically modified to be resistant to glyphosate, which is a broad spectrum herbicide sold by Monsanto under the name Roundup.22 22 Monsanto Co. v. Scruggs, 459 F.3d 1328, 1333 (Fed. Cir. 2006). This type of seed is desirable to many farmers because the farmers are able to spray the entire field with glyphosate, which kills all plants and weeds that do not contain the glyphosate resistant gene.23 23 Jason Savich, Monsanto v. Scruggs: The Negative Impact of Patent Exhaustion on Self-Replicating Technology, 22 Berkeley Tech. L.J. 115, 117--18 (2007). This process makes preparation of fields much quicker and easier.24 24 David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 185 (2010--11).
Scruggs purchased commodity soybeans from a grain distributor which included second generation soybeans from crops which were originally distributed to farmers according to a license which restricted distribution so as to ensure that it was not an unrestricted sale. The license included the requirement that the soybeans not be sold to another for use as seeds. The court held that patent exhaustion was not applicable as a defense under these circumstances. The court gave two reasons for the failure of patent exhaustion as a defense:
  1. The use of the seeds was conditioned on obtaining a license from Monsanto, and therefore was not an unrestricted sale; and
  2. The second generation seeds were never sold by Monsanto, and therefore patent exhaustion could not apply.25 25 Monsanto Co. v. Scruggs, 459 F.3d 1328, 1335--36 (Fed. Cir. 2006).
Bowman v. Monsanto also involved soybeans which were genetically modified to be glyphosate resistant. In this case, the farmer purchased seeds as commodity soybeans from a distributor, but determined later that they contained the patented gene. The farmer retained and replanted the subsequent generations of those seeds. The Supreme Court held that each generation of seeds is a new infringing article, and therefore, even if Monsanto’s rights were exhausted in the first generation, the planting and growing of new seeds creates a new infringing article.26 26 Bowman v. Monsanto Co., 133 U.S. 1761, 1764--67 (2013).
By the reasoning of the court in the two Monsanto cases, an innocent infringer would also be unable to raise a defense of patent exhaustion. The courts have been unanimous in their recognition of Monsanto’s licenses as being sufficient to remove the transaction for the seeds from the realm of a sale. The courts have also consistently held that the licenses provide only those rights to the purchaser, which are consistent with the license.27 27 Monsanto Co. v. Scruggs, 459 F.3d 1328 (Fed. Cir. 2006).

C. Notice

35 U.S.C. § 287(a) requires that a patent owner provide notice to possible infringers in order to be able to collect damages for any infringement of the patent.28 28 35 U.S. Code § 287. One law review article argues that the notice requirement must be given a broad interpretation with respect to genetically modified plants.29 29 David Catechi, Two Wrongs Don’t Make a Patent Right, 56 Hastings L.J. 769 (2005). The purpose of the broad interpretation is to balance the rights of the patent owner and the farmers who might be accused of patent infringement.
The current patent statute provides that, in the event of a failure to mark as described in the statute, no recovery for damages will be available to the patentee for any act of infringement, unless there is proof that the infringer was notified and thereafter continued to infringe. In accordance with 35 U.S.C. § 287(a), in a case involving direct notification of the patent, damages may only be recovered after notice is provided. The purposes of the statute includes notifying the public that articles are patented so they can avoid infringement, thereby removing from the public the duty to investigate whether an article is patented, and instead placing the duty to notify onto the patent holder.30 30 David Catechi, Two Wrongs Don’t Make a Patent Right, 56 Hastings L.J. 769, 788--89 (2005).
In the case of genetically modified plants, the patent holder must rely on the notice provision. The Federal Circuit has held that the notice must be “of the infringement” and that the notice must be in the form of an “affirmative communication with a specific charge of infringement by a specific accused product or device.”31 31 Amsted Indus., Inc. v. Buckeye Steel Castings Co., 24 F.3d 178, 186--87 (Fed. Cir. 1994). While there is no set requirement for the language of the notice, it must at least provide notification of the existence of the patent, the alleged infringing conduct, and “in some circumstances, reasonable suggestions for compliance with the patent.”32 32 David Catechi, Two Wrongs Don’t Make a Patent Right, 56 Hastings L.J. 769, 790 (2005).
Said law review article proposes that, instead of the more lax requirement of notice that has been required in the past, the notice requirement should be read broadly so that it requires the patent owner to provide sufficient information to allow the alleged infringer to cease the actions alleged to be infringing. Most genetically modified plants cannot be visibly differentiated from the non-genetically modified version of the same plant variety. Under the narrow reading of the notice requirement, after notice is given, an innocently infringing farmer would have an affirmative duty to perform expensive testing to determine the existence and the extent of intrusion of genetically modified plants, pay a royalty on the entire crop, or destroy the entire crop.33 33 David Catechi, Two Wrongs Don’t Make a Patent Right, 56 Hastings L.J. 769, 790--92 (2005).
The notice requirement would have no influence on the farmers who purchase seed directly from the manufacturer because they receive notice on the seed packaging and with the licensing agreement accompanying the seeds. The broad interpretation of notice would however encourage patent holders to incorporate a means of easily discerning the patented product from the naturally occurring, most likely through a visible marker. The patent holders may also be encouraged to develop means of reducing the possibility of the patented genes invading the fields of neighboring farms through pollen drift.
This seems like a very useful solution to the problem. However, there are still several problems that remain with a broadened interpretation of notice. The largest problem is that the notice requirement only protects innocent farmers from damages, but does not affect the ability for patent holders to obtain injunctions. Farmers would still be forced to determine which plants infringe the patent, pay a royalty on the entire crop, or destroy the entire crop.

D. In Pari Delicto

In pari delicto is a common law equitable doctrine which prohibits a plaintiff from recovering damages if they arise out of conduct for which the plaintiff is responsible.34 34 Black’s Law Dictionary 361 (3rd pocket ed. 2006). One law review article suggests that this doctrine should be available to farmers faced with charges of infringement because the infringement would be unavoidable due to the nature of plant reproduction.35 35 David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179 (2010--11). The article argues that the equitable defenses of laches and estoppel are available to defendants in a patent infringement suit, and therefore there is precedent for the application of common law defenses to patent infringement cases. The empowerment of the courts by 35 U.S.C. § 283 to grant injunctions in accordance with the principles of equity is noted as further evidence of the “specific legislative intent embodied in the U.S. patent law for courts to apply common law principles of equity to do so at their discretion.”36 36 David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 192 (2010--11); 35 U.S.C. § 283.
The article cites SmithKline Beecham v. Apotex as an example of a situation in which it would be fitting to apply the in pari delicto defense. In the SmithKline case, SmithKline held patent rights for, and produced, a hemihydrate crystalline form of the compound paroxetine. Apotex produced an anhydrate crystalline form of the compound paroxetine, which the court found not to infringe the patent rights held by SmithKline. However, the environment in which Apotex produced the anhydrate crystalline form of paroxetine was contaminated with SmithKline’s hemihydrates crystalline form, and it was from that point forward practically impossible to produce the anhydrate crystalline form without also producing SmithKline’s hemihydrates crystalline form.37 37 David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 193 (2010--11); SmithKline Beecham Corp. v. Apotex Corp., 247 F. Supp. 2d 1011, 1015--17, 1019--21, 1043, 1052 (N.D. Ill. 2003).
Judge Posner stated:

Although I cannot find any statutory language or case law that bears on the question, I believe that as a matter of fundamental principle it must be a defense to a charge of patent infringement that the patentee caused the infringement.38 38 SmithKline Beecham Corp. v. Apotex Corp., 247 F. Supp. 2d 1011, 1043 (N.D. Ill. 2003).

Judge Posner then stated that it is similar to the well known defense to a suit for breach of contract that the plaintiff prevented the defendant from performing his contractual duty. Unfortunately for Apotex, the Federal Circuit did not agree with Judge Posner in this regard, finding instead that even containing trace amounts of the infringing compound was infringement. The court in fact praised the intentions of Judge Posner in presenting the equitable defense, but stated that because the case could be decided without resort to anything beyond the patent law, the court would not address the defense.39 39 SmithKline Beecham Corp. v. Apotex Corp., 403 F.3d 1331, 1341--42 (Fed. Cir. 2005).
Because courts have both the powers of a courts of law and courts of equity, the courts have the ability to look beyond the mere fact that there has been infringement and look at the totality of the circumstances to find substantial justice.40 40 Wabash Ry. Co. v. American Refrigerator Transit Co., 7 F.2d 335, 346 (8th Cir. 1925). While this would be a change of position for the Federal Circuit, the rest of this section will discuss four underlying wrongs that could be persuasive reasons for the Federal Circuit to acknowledge, as other courts have, “the fundamental injustice of holding an unintentional infringer liable when the unintentional party pursuing the infringement made the act unavoidable”:41 41 David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 195 (2010--11).
  1. Inducement of infringement;
  2. Trespass;
  3. Nuisance; and
  4. Negligence.

Inducement

35 U.S.C. § 271(b) states that “whoever actively induces infringement of a patent shall be liable as an infringer.”42 42 35 U.S. Code § 271. This language requires that:
  1. There is an act of direct infringement by someone; and
  2. The inducer have the requisite intent in causing or encouraging that act of infringement.43 43 Michael Edward McCabe Jr. & Lindsay J. Kile, Recent Developments in Patent Law and their Impact on the Pharmaceutical and Biotechnology Industries, 19 U. Balt. Intell. Prop. L.J. 75, 77 (2011).
For the sake of the present analysis, the first element, direct infringement, can be assumed because the direct infringement would be alleged by the patent owners as the basis for litigation.
The second element, the intent requirement, comes from the “actively inducing” language in the statute. As a threshold requirement, the alleged inducer must have known of or have been willfully blind to the existence of the patent.44 44 Global-Tech Appliances, Inc. v. SEB, S.A., 131 S.Ct. 2060, 2071 (2011). In the case of an innocent infringer applying inducement as a defense, the plaintiff would hold the patent rights and would therefore necessarily know of the existence of the patent.
Beyond knowledge or willful blindness of the existence of the patent, an inducer either must have actually known, or based on the circumstances should have known, that his actions would induce actual infringements.45 45 DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1304 (Fed. Cir. 2006) (quoting Manville Sales Corp. v. Paramount Systems, Inc., 917 F.2d 544, 554 (Fed. Cir. 1990).
The mental state required to find inducement has been difficult for the courts to clearly define. One law review article explored the varying treatment of the intent element in the courts and concluded that there are three elements that must be present for the required intent to be found. First, the alleged inducer must have intended to perform the acts that form the basis of the alleged inducement. Second, the alleged inducer must have intended for the direct infringer to have engaged in the relevant acts. Third, the alleged inducer must have possessed sufficient fault with respect to whether those acts infringed.46 46 Jason A. Rantanen, An Objective View of Fault in Patent Infringement, 60 Am. U. L. Rev. 1575, 1599--1601 (2011).
The first element of the intent analysis is clearly present in the context of an innocent infringer. The patent right holder as the alleged infringer necessarily intends to sell the patented product which is by its nature self-replicating. The alleged inducer also satisfies the second element of the intent analysis by knowingly and willfully causing future parties to infringe by releasing the self-replicating patented organism into the environment thereby making infringement unavoidable.47 47 David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 197 (2010--11).
The third element is harder to prove, but the requisite fault can be seen by the actions taken by the manufacturers of transgenic crops. Taking Monsanto as an example of these manufacturers, the fault can be seen by what was known at the time of the release and the knowledge that resulting infringement would necessarily occur. Monsanto stated in its own 2005 Technology Use Guide provided to farmers who purchased genetically modified seeds that:

Since corn is a naturally cross-pollinated crop, a minimal amount of pollen movement (some of which can carry genetically improved traits) between neighboring fields is a well known and normal occurrence in corn seed or grain production.48 48 Monsanto Co., 2005 Technology Use Guide at 17.

The language in the 2014 Technology Use Guide now uses language which downplays the danger of cross-pollination, but does provide two full pages of instructions on mitigating the danger.49 49 Monsanto Canada, 2014 Technology Use Guide 4--5. These statements in Monsanto’s Technology Use Guides are clear admissions that Monsanto is aware of the consequences of its release of genetically modified self-replicating organisms.
Although inducement is generally brought against another party for infringement of a patent, in the case of self-replicating technologies, courts should recognize the part played by the patent holder in causing the infringement by others. As one law review article has argued, it would be difficult to view a finding of infringement as equitable if a genetically modified seed company had secretly planted genetically modified seeds on a farmers land and then sued that farmer for infringement when the seed grew. The same principle of equity should be applied in the case where the genetically modified seed company manufactured seeds that naturally propagate onto the farms surrounding those of the seed company’s customers and grow without the farmers knowledge. The application of in pari delicto in such a case is not much different, and no less supported, than the defenses of laches and estoppel which have been applied by the courts.50 50 David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 199 (2010--11).
The application of in pari delicto, based on inducement of infringement by the patent owner, could be a very useful tool in finding an equitable solution to the innocent infringer problem. The Federal Circuit and the Supreme Court, however, have been unwilling to look beyond the simple fact that there has been direct infringement.51 51 See Monsanto Co. v. Bowman, 657 F.3d 1341 (Fed. Cir. 2011); Bowman v. Monsanto Co., 133 U.S. 1761 (2013).

Trespass

The Restatement (Second) of Torts § 158 states the rule for trespass is that:

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, (b) remains on the land, or (c) fails to remove from the land a thing that he is under a duty to remove.52 52 Restatement (Second) of Torts § 158.

Although trespass is generally a direct tort, plaintiffs may rely on Martin v. Reynolds Metal Co. to extend common law trespass principles to a cause of action for trespass resulting from pollen drift.53 53 Martin v. Reynolds Metal Co., 342 P.2d 790 (Or. 1959). David Catechi, Two Wrongs Don’t Make a Patent Right, 56 Hastings L.J. 769, 782 (2005).
Reynolds involved fluoride particles that settled on the Martins’ land, which the court held could be a trespass. Moreover, in determining trespass, Martin did not need to show that any harm was caused by the thing entering onto the land. However, if a plaintiff were to use this rationale, he would still have to identify the source of the contamination.54 54 David Catechi, Two Wrongs Don’t Make a Patent Right, 56 Hastings L.J. 769, 782 (2005).
Determining the source of the contamination could be a big problem for plaintiff farmers. With many farms packed closely together in some parts of the country, there would be no sure way to determine the exact source of their contamination, making the defense not viable. This defense is also only viable against the surrounding farmers unless a sufficiently persuasive argument could be developed to claim that the genetic seed manufacturer “cause[d] a thing” to enter onto the farmers’ land. Because of these problems, trespass is not a reliable defense for innocent infringers.

Nuisance

A very persuasive argument for the use of nuisance with respect to genetically modified plants was made in a 2010 law review article.55 55 Amanda L. Kool, Halting Pig in the Parlor Patents: Nuisance Law as a Tool to Redress Crop Contamination, 50 Jurimetrics J. 453 (2010). This appears to provide a very useful tool for those facing damage from genetically modified plants encroaching on their crops.
The law in most states, together with regulations from the United States Department of Agriculture, place the burden on a farmer who is not using genetically modified seed to protect his crop from contamination. This creates a gap in the law regarding the responsibility of those who do not use genetically modified crops and those who do, and perhaps more importantly, between the patent holder and the property holder.
Private nuisance theory could be a way to more equitably balance the responsibility between these parties and determine a good balance between patent rights and property rights. If a court were to evaluate the patent owners infringement suit concurrently with the policy arguments raised by the farmers nuisance counterclaim, the intellectual property rights might not so thoroughly overshadow the property rights of the farmer.
At least two cases have recognized the private nuisance right of a farmer against a seed company, one of which wound up with a large verdict for the farmer asserting the nuisance claim.56 56 In re StarLink Corn Products Liability Litigation, 212 F. Supp. 2d 828 (N.D. Ill. 2002). In re Genetically Modified Rice Litig., 666 F. Supp. 2d 1004 (2009). The factors present in each case “such as the type of crop grown, the market to which the farmer sells, the circumstances of the contamination, and the jurisdiction in which the farm resides will greatly affect a plaintiffs likelihood of success.”57 57 Amanda L. Kool, Halting Pig in the Parlor Patents: Nuisance Law as a Tool to Redress Crop Contamination, 50 Jurimetrics J. 453, 480--81 (2010).
The Restatement (Second) of Torts § 822 states that:

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.58 58 Restatement (Second) of Torts § 822.

At first glance, this section might seem to leave the farmer with only a remedy against the neighboring farmer from whom the genetically modified genes have drifted. However, courts have found that a defendant may be liable under private nuisance law “not only when he carries on the activity but also when he participates to a substantial extent in carrying it on.”59 59 Restatement (Second) of Torts § 834 (quoted in Page County Appliance Center, Inc. v. Honeywell, Inc., 347 N.W.2d 171 (Iowa 1984)).
The article posits that the control maintained by genetically modified plant patent owners participate in carrying it on because they have substantial control of the seeds through the license agreements under which they are sold. Also, in order for a plaintiff to bring a successful private nuisance suit, the plaintiff must allege physical damage to his property. The physical damage to property can be either pollen drift onto the plaintiffs property or co-mingling of the seeds in transport or storage after they are harvested. Once the first two factors have been established, a court will try to

balance the harm suffered by the plaintiff and society against the benefit derived by the defendant and society through the lens of five factors:

    1. Harm caused to the plaintiff by the defendants actions;
    2. Whether defendants use of the property is for a socially beneficial purpose;
    3. Whether the defendant is in the best position to bear the cost of mitigating the harm;
    4. The time, place, manner, and circumstances of defendants use; and
    5. Who was there first.60 60 Amanda L. Kool, Halting Pig in the Parlor Patents: Nuisance Law as a Tool to Redress Crop Contamination, 50 Jurimetrics J. 453, 482--85, 486 (2010).
The analysis of these factors will be very fact intensive and will have to be dealt with on a case by case basis. It is not yet clear how courts will weigh these factors in a standard case of innocent infringement, because the few cases which have alleged private nuisance have had differing results.61 61 See In re StarLink Corn Products Liability Litigation, 212 F. Supp. 2d 828 (N.D. Ill. 2002); In re Genetically Modified Rice Litigation, 666 F.Supp.2d 1004 (E.D. Missouri, 2009). From these cases, it is clear that it is possible for some plaintiffs to show harm to their crops, show a sufficient connection to the manufacturer, and show that the factors of the nuisance balancing test weigh in their favor. But this is a highly fact intensive investigation and will only work for some plaintiffs. This is not a reliable solution that can be applied for all innocent infringers.

Negligence

In order to make out a case of negligence, a plaintiff must show that the defendant owed the plaintiff a duty, that the duty was breached, that there were damages, and that the breach caused the damages.
The plaintiff farmer will most likely have a hard time proving that the genetically modified seed manufacturer owed him a duty. The regulatory agencies that control genetically modified organisms consider the genetically modified crops to be substantially equivalent to the natural crops and therefore they do not impose any duty on the farmer of genetically modified crops to restrain from contaminating the natural farmers crops.62 62 A. Bryan Endres, Coexistence Strategies, The Common Law of Biotechnology and Economic Liability Risks, 13 Drake J. Agric. L. 115, 138 (2008).
Causation may also be hard for a plaintiff farmer to prove because the plaintiff must prove the source of the contamination that caused the harm. The source may be impossible to identify because pollen and seed drift can cause contamination up to several miles from the source of the contamination. If there are multiple possible farms, the exact farm must be pinpointed, and then the source of that farms seed must be traced.63 63 David Catechi, Two Wrongs Don’t Make a Patent Right, 56 Hastings L.J. 769, 780 (2005).
Beyond causation, the plaintiff farmer must also prove damages. With the proliferation and increased acceptance of genetically modified foods, a plaintiff will have a hard time basing the harm analysis on the idea that genetically modified plants are unsafe or dangerous. This element may be easier for organic farmers or farmers who supply to foreign countries that do not accept genetically modified crops. It seems that there might be some rare occasions when negligence might be successfully proven, but it does not cover the majority of farmers.64 64 David Catechi, Two Wrongs Don’t Make a Patent Right, 56 Hastings L.J. 769, 780--81 (2005).

E. No Financial Recovery

The plaintiffs in Organic Seed Growers and Trade Assn. v. Monsanto Co. also argued that, even if the patent was found to be valid, infringed, and enforceable, Monsanto would not be entitled to any damages because Monsanto suffers no lost profits when its genetically modified seed contaminates the property of a certified organic or non-genetically modified farmer or seed distributor. Furthermore, the plaintiffs stated that no injunctive relief could be issued because the weighing of hardships is in their favor.65 65 Complaint, Organic Seed Growers and Trade Assn. v. Monsanto Co., ¶¶ 161--63.
Again, it must be noted that there is currently no intent requirement in the analysis of direct patent infringement under 35 U.S.C. § 271(a). For this reason, there is no guarantee that a court will look at the balance of hardships between the parties. This unwillingness to look beyond the facts of infringement was seen in SmithKline Beecham Corp. v. Apotex Corp., where the Federal Circuit refused to look beyond the language of the statute, even though they had been invited to do so by the District Court.66 66 SmithKline Beecham Corp. v. Apotex Corp., 403 F.3d 1331, 1342 (Fed. Cir. 2005).
Other courts have recognized that any damages must take into account the equities involved. One such case was decided by the Canadian Supreme Court. In that case, the farmer, Schmeiser, found that glyphosate resistant canola had infiltrated his non-genetically modified canola. Schmeiser proceeded to cover his field with glyphosate and kept seeds from the plants that remained. When he replanted the field, between 95% to 98% of the crop carried the glyphosate resistant trait, which was patented by Monsanto.67 67 Monsanto Can. Inc. v. Schmeiser, [2004] 1 S.C.R. 902 ¶¶ 61--64 (Can.).
The Canadian Supreme Court stated in the beginning of the Schmeiser opinion that they were not dealing with the case of an innocent infringer. The court later indicated that if Schmeiser had “been a mere ‘innocent bystander’, he could have refuted the presumption of use arising from his possession of the patented gene and cell.”68 68 Monsanto Can. Inc. v. Schmeiser, [2004] 1 S.C.R. 902 ¶ 95 (Can.). This analysis by the Canadian Supreme Court recognized the idea that a farmer who unknowingly grows patented crops should only be liable for that infringement to the extent that he has benefited from the use of the patented traits.69 69 David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 186, 189 (2010--11).
In the example case of Schmeiser, if he had never used Roundup on the crops, the Canadian Supreme Court probably would have decided that he had gained no benefit from the existence of the crops on his land, and therefore he should have no liability due to the existence of the infringing plants. This is not a well accepted concept, particularly with the Federal Circuit, which tends to stick to the plain language of the infringement statute and does not look at the equities of a case.70 70 SmithKline Beecham Corp. v. Apotex Corp., 403 F.3d 1331, 1342 (Fed. Cir. 2005). Because of the treatment this principle has received in the Federal Circuit, it cannot be relied upon as a defense by innocent infringers.

III. Proposed Legislative Protection

A. Proposed Statutory Language: 35 U.S.C. § 287(d)

With respect to a farm owner or farming personnel activity related to genetically modified organisms that constitutes an infringement under section 271(a) or (b) of this title, the provisions of sections 281, 283, 284, and 285 of this title shall not apply against the farm owner or farming personnel or against a related farming entity with respect to such activity where: the activity was performed without intent to acquire the genetically modified organisms, and the activity includes no affirmative acts to knowingly facilitate increased propagation of the patented organism relative to comingled unpatented organisms.
(1) Activity under this section shall be deemed to have been performed without intent to acquire the genetically modified organisms if such activity relates to 5% or less of that species of organism within a growth group.
(2) Activity under this section shall be deemed to have been performed with intent to acquire the genetically modified organisms if the patented organisms are readily discernible from non-patented organisms and are not removed by the farm owner or farming personnel.

B. Reasoning for Statutory Language

The above proposed statute immunizes actions that would otherwise constitute infringement by farm owners or farming personnel if certain conditions are met. In order for the actions to be immunized, the farm owner or farming personnel must not intentionally acquire or propagate the patented organism. The statute also provides bright line rules which will protect a majority of farmers who unintentionally have genetically modified plants enter onto their farms through pollen drift and also provide an incentive for the patent owners to make the patented organisms easily identifiable.71 71 Peter Thomison, Managing “Pollen Drift” to Minimize Contamination of Non-GMO Corn, AGF-153-04.
Immune infringement is not a new concept in patent law. 35. U.S.C. § 287(c) provides a framework for immunizing medical practitioners from infringement suits.72 72 Elizabeth Moulton, Inducing Immune Infringement: The Interplay Of Section 287(c) And Section 271(b), 13 Colum. Sci. &{} Tech. L. Rev. 206, 209 (2012). 35 U.S.C. § 287(c)(1) provides that:

With respect to a medical practitioners performance of a medical activity that constitutes an infringement under section 271(a) or (b) of this title, the provisions of sections 281, 283, 284, and 285 of this title shall not apply against the medical practitioner or against a related health care entity with respect to such medical activity.73 73 35 U.S.C. § 287(c)(1).

35 U.S.C. § 287(c)(3) then limits the immunity so that it does not cover “commercial development, manufacture, sale, importation, or distribution of a machine, manufacture, or composition of matter or the provision of pharmacy” or, under certain circumstances, clinical laboratory services.74 74 35 U.S.C. § 287(c)(3).
Congress was concerned with the potential liability of doctors and other medical professionals and therefore examined different ways of ensuring that they would not be subject to medical method suits. Two amendments were proposed and quickly abandoned after strong criticism. The first proposal was to remove medical method patents from the arena of patentable subject matter under 35 U.S.C. § 101; the second proposal was to declare use or inducement by certain individuals to not be infringement. The final bill was accepted in large part because of concerns about the effect that medical method patents could have on the medical profession.
The solution found by 35 U.S.C. § 287(c) was to specify that the actions taken by the medical professionals on which a patent read would be considered infringement, but that the medical professional was immune from legal remedies. This is in stark contrast to 35 U.S.C. § 271(e)(1), under which research related to the development and submission of information to the FDA is not infringing activity.75 75 35 U.S.C. § 271(e)(1). This is an important distinction because secondary liability, such as contributory infringement, can attach to immune infringement, but cannot exist for non-infringing actions.
35 U.S.C. § 287(c) has been used as a guide for the proposed statute because both that statute and the proposed statute address the balance of the rights granted to the patent owner and concerns of other individuals. The policy behind allowing medical professionals to perform patented medical methods without being liable for infringement is to enhance the medical treatment available to the public.76 76 Elizabeth Moulton, Inducing Immune Infringement: The Interplay Of Section 287(c) And Section 271(b), 13 Colum. Sci. & Tech. L. Rev. 206, 212--14 (2012).
The policy behind the proposed statute is to protect farmers, who through no fault of their own, have come into possession of patented living organisms with no intent to possess or make use of any of the advantages of the patented living organism over unpatented organisms of the same species. These are the same policy concerns that have prompted so many commentators to suggest common law solutions based on equity principles, as discussed earlier in this Article.77 77 David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 179 (2010--11); Amanda L. Kool, Halting Pig in the Parlor Patents: Nuisance Law as a Tool to Redress Crop Contamination, 50 Jurimetrics J. 453, 466 (2010); A. Bryan Endres, Coexistence Strategies, The Common Law of Biotechnology and Economic Liability Risks, 13 Drake J. Agric. L. 115, 138 (2008).
As discussed, genetically modified traits can transmit from one field to another without any human interference. One of the main questions raised by such a fact scenario is whether it is equitable to hold an unknowing farmer guilty of infringement, when he has his crop altered by another and, in the case of organic farmers or farmers who supply to areas that do not accept genetically modified crops, could have suffered economic loss due to the invasion of genetically modified plants. Allowing a patent owner to release an organism into the environment which will undoubtedly cause instances of innocent infringement is a broadening of the patent owner’s rights because it is the patent owner, and not the farmer to whom he sold his patented product, who is responsible for the plant’s presence in the alleged infringer’s field.78 78 Amanda L. Kool, Halting Pig in the Parlor Patents: Nuisance Law as a Tool to Redress Crop Contamination, 50 Jurimetrics J. 453, 456 (2010). See also Malla Pollack, Originalism, J.E.M., and the Food Supply, or Will the Real Decision Maker Please Stand Up?, 19 J. Envtl. L. & Litig. 495, 517--34 (2004); Siddharth Khanijou, Patent Inequity?: Rethinking the Application of Strict Liability to Patent Law in the Nanotechnology Era, 12 J. Tech. L. & Pol’y 179 (2007).
The problem of pollen drift is growing as more and more crops and farms become genetically engineered. As of 2011, 89% of corn, 91% of cotton, and 94% of soy beans grown in the United States are genetically modified. The percentage of genetically modified crops has been steadily increasing for more than a decade.79 79 Adoption of Genetically Engineered Crops in the United States 1996--2014. Because of the prevalence of genetically modified crops, organic or non-genetically modified farms are usually surrounded by genetically modified crops, any one of which could cause genetically modified genes to appear on that farm. Balancing the costs and benefits in regulating biotech crops is a policy decision and therefore lies within the political arena.
Farmers have very important economic interests that can be damaged if genetically modified traits contaminate their organic or non-genetically modified crops. Agricultural exports for the fiscal year 2015 are forecast at $143.5 billion.80 80 Outlook for U.S. Agricultural Trade, AES-84 (2014). Yet many countries require segregation of genetically modified foods from non-genetically modified foods. 81 81 A. Bryan Endres, Coexistence Strategies, The Common Law of Biotechnology and Economic Liability Risks, 13 Drake J. Agric. L. 115, 117 (2008). For example, Japan does not allow food products which contain 5% or more of approved genetically modified crops, like corn and soybeans, to be labeled as non-genetically modified, and does not allow any food products containing any level of unapproved gentically modified crops. The European Union requires that foods, containing more than 0.9% biotech material be labeled as genetically engineered.82 82 Peter Thomison, Managing “Pollen Drift” to Minimize Contamination of Non-GMO Corn, AGF-153-04. The limitations placed on genetically modified crops in other countries can limit the market for American farmers if their crops become tainted by genetically modified plants. Even if the crops are to be sold within the U.S., if organic crops become contaminated with genetically modified traits, the crops will greatly decease in value.83 83 Hilary Preston, Drift of Patented Genetically Engineered Crops: Rethinking Liability Theories, 81 Tex. L. Rev. 1153 (2003).
Pollen is a means by which genetically-modified genes can be transmitted throughout a plant population or a related species.84 84 Paul C. St. Amand, Daniel Z. Skinner, and Richard N. Peaden, Risk of Alfalfa Transgene Dissemination and Scale Dependent Effects, 101 Theor. Appl. Genet. 107 (1999). Pollen can be transmitted through the air or by insects such as bees. Studies show that the amount of gene transfer from a plant carrying a specific trait to other plants of the same species varies by the type of plant, but consistently decreases with the distance from the source plant to the receiving plant.85 85 Allen E. Van Deynze, Frederick J. Sundstrom, and Kent J. Bradford, Pollen-Mediated Gene Flow in California Cotton Depends on Pollinator Activity, 45 Crop Science 1565 (2005).
Individual corn plants produce 4 to 5 million pollen grains. Corn produces one of the largest pollen spores which fall to the earth, much faster than pollen produced by grassy crops.86 86 Allen E. Van Deynze, Frederick J. Sundstrom, and Kent J. Bradford, Pollen-Mediated Gene Flow in California Cotton Depends on Pollinator Activity, 45 Crop Science 1565 (2005). One study found that although most of a corn plants pollen falls to the ground near the plant, some of the pollen can travel up to 0.5 miles within a few minutes in a 15 mile per hour wind. Another study showed that the concentration of pollen present at 200 feet from a corn plant was 1% of the concentration present three feet from the plant. The amount of cross pollinated plants present in another field decreases exponentially with the distance between the fields until the amount approaches 0.1%. The study found, however, that even a distance of 1,640 feet was not sufficient to consistently limit cross pollination to less than 0.1%. Even state seed certification agencies have rejected the idea of eliminating cross-pollination and have instituted policies for the buffer zones between fields of corn with the goal of maintaining the cross-pollination between fields at or below 0.5%.87 87 Peter Thomison, Managing “Pollen Drift” to Minimize Contamination of Non-GMO Corn, AGF-153-04 (citing Bob Nielsen, Tassel Emergence & Pollen Shed, Corny News Network (2010).
Unlike corn, alfalfa pollen is spread by bees. One study showed that bees can carry alfalfa pollen more than 2/3 of a mile.88 88 Linda McGraw, Keeping Transgenic Pollen in Its Place, Agri. Research 7 (2001). Another study confirmed that alfalfa plants were pollinated over 750 feet away from the source alfalfa. The study concluded that it is “highly unlikely” that farmers can stop contamination of non-genetically modified alfalfa with genetically modified alfalfa traits with current farming practices.89 89 Paul C. St. Amand, Daniel Z. Skinner, and Richard N. Peaden, Risk of Alfalfa Transgene Dissemination and Scale Dependent Effects, 101 Theor. Appl. Genet. 107 (1999).
In order to minimize contamination,

a farmer must undertake expensive and burdensome measures at every step of production:

    1. having seed tested;
    2. implementing buffer zones to avoid cross-pollination;
    3. paying for extra time and equipment to ensure that the harvester and cleaner do not contaminate the crop from previous jobs;
    4. testing after harvest to check for contamination from events such as seed blowing from a passing truck … ;
    5. paying to have the truck cleaned prior to hauling non-GM grain to market;
    6. paying extra for special storage or storing the grain on the farm after harvest.90 90 Brief for Amici Curiae, In Support of Plaintiff’s Opposition to Defendant’s Motion to Dismiss, Organic Seed Growers and Trade Assoc. v. Monsanto Co., Case 1:11-CV-2163-NRB-RLE (S.D.N.Y. 2011).
The necessary step of implementing buffer zones is particularly troublesome because, even with the minimum buffer zone suggested by research from Ohio State University, a farmer would lose about 35% of a 20 acre field.91 91 Peter Thomison, Managing “Pollen Drift” to Minimize Contamination of Non-GMO Corn, AGF-153-04. Even with these additional steps, farmers will have to deal with purchased seed, which will become increasingly contaminated as cross-pollination affects the farms from which the commodity seeds are purchased.92 92 Brief for Amici Curiae, In Support of Plaintiff’s Opposition to Defendant’s Motion to Dismiss, Organic Seed Growers and Trade Assoc. v. Monsanto Co., 17, No. 11-CV-2163-NRB-RLE (S.D.N.Y. 2011) (citing Lyle F. Friesen, Alison G. Nelson and Rene C. Van Acker, Evidence of Contamination of Pedigreed Canola (Brassica Napus) Seedlots in Western Canada with Genetically Engineered Herbicide Resistance Traits, 95 Agron. J. 1342 (2003).
The rights granted to patent owners should be balanced against the increased burdens placed on the non-genetically engineered crop farmers due to the self-replicating nature of genetically modified organisms in light of the policy behind patent law as a whole. “Patent protection is granted so that the patentee can control who can capture the benefit of the patentees invention, and in what manner.”93 93 Hilary Preston, Drift of Patented Genetically Engineered Crops: Rethinking Liability Theories, 81 Tex. L. Rev. 1153, 1168 (2003). This goal is not furthered by providing legal remedies for infringement of the patents by farm owners or farming personnel under the circumstances prescribed in the proposed statute because such activities do not derive a benefit from the patentees invention.
The proposed statute requires that the alleged infringer not purposely obtain or promote the growth of the patented crop and therefore, the advantages of the patented inventions may not be realized. For example, a farmer who finds a small percentage of glyphosate resistant corn on his property would not be able to use a glyphosate herbicide on the crop because all of the non-genetically modified crop would be destroyed. Not only would the farmer lose much of his crop in this situation, but the farmer would also be removed from the protection of the statute because the use of a glyphosate herbicide on the corn would be an affirmative act that facilitates increased propagation of the patented corn relative to comingled unpatented corn.
The proposed statute also protects the biotech companies who are the patent owners for genetically modified organisms by maintaining the current level of protection for any direct infringement that is not exempted by the statute. The statute exempts only a narrow range of actions which can be seen as innocent and also which do not detract in any way from the potential profit of the patent owners. Any actions exempt by the statute would be carried out by parties who would not be interested in purchasing licenses from the patent owners or using the patent owners technology if it was not forced upon them without their knowledge.
The proposed statute also takes into account the situations where a farmer may obtain knowledge of some infringing product within the growth group, but insufficient amounts to influence his current use of the crop. If the amount is still under the limits set by foreign countries to be considered non-genetically engineered, the farmer may still take advantage of those markets.94 94 Peter Thomison, Managing “Pollen Drift” to Minimize Contamination of Non-GMO Corn, AGF-153-04. The proposed statute allows the farmer to continue his planned use of the crop and therefore removes the wasteful requirement that the farmer destroy his crop to ensure non-infringement or the inequitable alternative of paying a license for technology that he did not want and from which he received no benefit.
If, on the other hand, the farmer learns of the infringing plants and takes steps to further cultivate those plants, it would be inequitable for the farmer to be exempt from the applicable legal remedies based only on the fact that the farmer obtained the plants innocently. The proposed statute removes this type of activity from the exemption. The importance of this type of action can be seen in Schmeiser where a farmer found glyphosate resistant plants on his land through no action of his own, but then removed all other plants through the use of glyphosate and saved the seeds from the glyphosate resistant plants that remained so that his next crop was almost entirely glyphosate resistant.95 95 Monsanto Can. Inc. v. Schmeiser, [2004] 1 S.C.R. 902 (Can.). It would be inequitable to allow someone who performed actions like those in Schmeiser, because the farmer in such a case could take advantage of the benefits of the patented invention.96 96 Drew L. Kershen, Of Straying Crops and Patent Rights, 43 Washburn L.J. 575, 586 (2004).
The bright line rule in subsection (1) of the proposed statute, considering possession or use of patented genetically modified organisms that constitute up to 5% of the organisms in a growth group to be activity performed without intent to acquire the genetically modified organisms, is included for the protection of farmers who find a small amount of the genetically modified organism within their crop through no fault of their own. Some genetically modified organism producers have a track record of aggressively addressing any possibility of infringing action.97 97 Amanda L. Kool, Halting Pig in the Parlor Patents: Nuisance Law as a Tool to Redress Crop Contamination, 50 Jurimetrics J. 453, 466 (2010). See also E. Freeman, Settling the Matter --- Part 5. If testing proves that the patented genetically modified organisms constitute 5% or less of the organisms in the growth group, any threatened investigation or litigation would be pointless because the activities of the farm owner or farming personnel would be exempt from legal remedies. This adds to quick and fair resolution of the type of cases that will ordinarily come from a case of pollen drift or inadvertent contamination.
The bright line rule in proposed subsection (1) does not mean that any activity related to patented genetically modified organisms constituting more than 5% of the organisms in the growth group would not be exempt from legal remedies. The bright line rule only applies to situations in which the patented genetically modified organisms constitute 5% or less of the organisms in a growth group. If the amount is more than 5%, then the intent of the alleged infringer and the actions taken by that alleged infringer must be examined to see if the actions fall within the proposed statute.
The bright line rule in subsection (2) of the proposed statute, that if the patented organisms are readily discernible from non-patented organisms and are not removed by the farm owner or farming personnel the activity under the proposed statue would be deemed to have been performed with intent to acquire the genetically modified organisms, is meant to motivate patent owners to make the genetically modified organisms easily identifiable. The majority of genetically modified organisms are not visibly distinguishable from non-genetically modified organisms of the same species.98 98 Jakub Kwieciński, Genetically modified abominations? 10 EMBO Rep. 1187 (2009). Currently, either expensive genetic testing or physical testing, which destroys useful organisms, must be performed in order to determine which organisms contain patented genetic traits and which do not contain the patented traits.99 99 See Hilary Preston, Drift of Patented Genetically Engineered Crops: Rethinking Liability Theories, 81 Tex. L. Rev. 1153, 1172 (2003). See also David Catechi, Two Wrongs Don’t Make a Patent Right, 56 Hastings L.J. 769, 790 (2005).
The bright line rule in subsection (2) of the proposed statute would increase efficiency for both the farmers and the patent owners. If a visibly distinguishable trait were added to patented genetically modified organisms, farmers would be able to determine very easily by visual inspection if there were potentially infringing organisms on their farms. The farmer could then remove these organisms and stop the infringing activity. The patent owner would also benefit from ease of enforcement. A simple visual inspection of a farmers crop would inform the patent owner of potential infringement without the need for costly testing.
The rule in subsection (2) of the proposed statue is also in line with the policy behind the notice statute as discussed above. A farmer would be able to distinguish between the organisms which are infringing, would therefore be on notice that they are covered by a patent, and would have a duty to remove the infringing organisms.
Currently, the patent owner must give notice of specific infringement and must therefore test the organisms before such notice can be provided. If a patent owner could refer to a visibly distinguishable feature, the entire process of providing notice would be simplified for both the farmer and the patent owner.

IV. Conclusion

Patented self-replicating organisms create unique problems for innocent parties who come to possess or use the patented organisms without any intent to do so and often without knowledge that the organism is anything other than a naturally occurring organism. In these cases, policy concerns warrant an exemption from recovery of legal remedies by the patent owner, but current patent law and common law doctrines are insufficient to adequately address these policy concerns.
The statute proposed in this article balances the rights provided by the patent statute to the patent owner and the property rights of the innocent infringer. Adoption of the proposed statute will result in an equitable solution to a problem which threatens to appear in an ever increasing number of factual situations and law suits. The proposed statute will provide some clarity, so that both the patent owner and the alleged infringer will be free from fear of a reduction in patent rights or of threatened litigation.

Footnotes

1William Brees is an intellectual property attorney, with an LL.M. in intellectual property, currently working at Maxey Law Offices, P.L.L.C. in St. Petersburg, Florida.
2Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980); 35 U.S. Code § 101.
3J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U.S. 124, 145 (2001).
4U.S. Department of Agriculture Economic Research Service, Adoption of Genetically Engineered Crops in the United States.
5Genetically modified organism (GMO), Encyclopaedia Britannica.
6Alex Platt, Center for Food Safety v. Vilsack: Roundup Ready Regulations, 37 Ecology L.Q. 773, 774 (2010).
7Amanda L. Kool, Halting Pig in the Parlor Patents: Nuisance Law as a Tool to Redress Crop Contamination, 50 Jurimetrics J. 453, 466 (2010).
8Marcella Downing-Howk, The Horns of a Dilemma: The Application of the Doctrine of Patent Exhaustion and Licensing of Patented Seed, 14 San Joaquin Agri. L. Rev. 39, 42 (2004).
9David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179 (2010--11).
10Amanda L. Kool, Halting Pig in the Parlor Patents: Nuisance Law as a Tool to Redress Crop Contamination, 50 Jurimetrics J. 453, 484 (2010). See also E. Freeman, Settling the Matter --- Part 5.
11David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 180 (2010--11).
13Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743 (2010).
14Organic Seed Growers & Trade Assn v. Monsanto Co., 718 F.3d 1350, 1352 (Fed. Cir. 2013).
16Lowell v. Lewis, 15 F. Cas. 1018 (C.C.D. Mass. 1817). Complaint, Organic Seed Growers and Trade Assn. v. Monsanto Co., ¶ 4 (quoting U.S. Const, Art. I, § 8, cl. 8 and 35 U.S.C. § 101).
17Complaint, Organic Seed Growers and Trade Assn. v. Monsanto Co., ¶¶ 113--20.
18In re Fisher, 421 F.3d 1365, 1371 (Fed. Cir. 2005); Brenner v. Manson, 383 U.S. 519, 534--35 (1966).
19David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 184 (2010--11).
20Tessera, Inc. v. International Trade Comn, 646 F.3d 1357, 1369 (Fed. Cir. 2011) (quoting Quanta Computer, Inc. v. LG Elecs., Inc., 553 U.S. 617, 625 (2008)).
21Monsanto Co. v. Scruggs, 459 F.3d 1328, 1333 (Fed. Cir. 2006); Bowman v. Monsanto Co., 133 U.S. 1761, 1768 (2013); Monsanto Co. v. Bowman, 657 F.3d 1341 (Fed. Cir. 2011).
22Monsanto Co. v. Scruggs, 459 F.3d 1328, 1333 (Fed. Cir. 2006).
23Jason Savich, Monsanto v. Scruggs: The Negative Impact of Patent Exhaustion on Self-Replicating Technology, 22 Berkeley Tech. L.J. 115, 117--18 (2007).
24David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 185 (2010--11).
25Monsanto Co. v. Scruggs, 459 F.3d 1328, 1335--36 (Fed. Cir. 2006).
26Bowman v. Monsanto Co., 133 U.S. 1761, 1764--67 (2013).
27Monsanto Co. v. Scruggs, 459 F.3d 1328 (Fed. Cir. 2006).
29David Catechi, Two Wrongs Don’t Make a Patent Right, 56 Hastings L.J. 769 (2005).
30David Catechi, Two Wrongs Don’t Make a Patent Right, 56 Hastings L.J. 769, 788--89 (2005).
31Amsted Indus., Inc. v. Buckeye Steel Castings Co., 24 F.3d 178, 186--87 (Fed. Cir. 1994).
32David Catechi, Two Wrongs Don’t Make a Patent Right, 56 Hastings L.J. 769, 790 (2005).
33David Catechi, Two Wrongs Don’t Make a Patent Right, 56 Hastings L.J. 769, 790--92 (2005).
34Black’s Law Dictionary 361 (3rd pocket ed. 2006).
35David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179 (2010--11).
36David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 192 (2010--11); 35 U.S.C. § 283.
37David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 193 (2010--11); SmithKline Beecham Corp. v. Apotex Corp., 247 F. Supp. 2d 1011, 1015--17, 1019--21, 1043, 1052 (N.D. Ill. 2003).
38SmithKline Beecham Corp. v. Apotex Corp., 247 F. Supp. 2d 1011, 1043 (N.D. Ill. 2003).
39SmithKline Beecham Corp. v. Apotex Corp., 403 F.3d 1331, 1341--42 (Fed. Cir. 2005).
40Wabash Ry. Co. v. American Refrigerator Transit Co., 7 F.2d 335, 346 (8th Cir. 1925).
41David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 195 (2010--11).
43Michael Edward McCabe Jr. & Lindsay J. Kile, Recent Developments in Patent Law and their Impact on the Pharmaceutical and Biotechnology Industries, 19 U. Balt. Intell. Prop. L.J. 75, 77 (2011).
44Global-Tech Appliances, Inc. v. SEB, S.A., 131 S.Ct. 2060, 2071 (2011).
45DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1304 (Fed. Cir. 2006) (quoting Manville Sales Corp. v. Paramount Systems, Inc., 917 F.2d 544, 554 (Fed. Cir. 1990).
46Jason A. Rantanen, An Objective View of Fault in Patent Infringement, 60 Am. U. L. Rev. 1575, 1599--1601 (2011).
47David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 197 (2010--11).
48Monsanto Co., 2005 Technology Use Guide at 17.
49Monsanto Canada, 2014 Technology Use Guide 4--5.
50David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 199 (2010--11).
51See Monsanto Co. v. Bowman, 657 F.3d 1341 (Fed. Cir. 2011); Bowman v. Monsanto Co., 133 U.S. 1761 (2013).
53Martin v. Reynolds Metal Co., 342 P.2d 790 (Or. 1959). David Catechi, Two Wrongs Don’t Make a Patent Right, 56 Hastings L.J. 769, 782 (2005).
54David Catechi, Two Wrongs Don’t Make a Patent Right, 56 Hastings L.J. 769, 782 (2005).
55Amanda L. Kool, Halting Pig in the Parlor Patents: Nuisance Law as a Tool to Redress Crop Contamination, 50 Jurimetrics J. 453 (2010).
56In re StarLink Corn Products Liability Litigation, 212 F. Supp. 2d 828 (N.D. Ill. 2002). In re Genetically Modified Rice Litig., 666 F. Supp. 2d 1004 (2009).
57Amanda L. Kool, Halting Pig in the Parlor Patents: Nuisance Law as a Tool to Redress Crop Contamination, 50 Jurimetrics J. 453, 480--81 (2010).
59Restatement (Second) of Torts § 834 (quoted in Page County Appliance Center, Inc. v. Honeywell, Inc., 347 N.W.2d 171 (Iowa 1984)).
60Amanda L. Kool, Halting Pig in the Parlor Patents: Nuisance Law as a Tool to Redress Crop Contamination, 50 Jurimetrics J. 453, 482--85, 486 (2010).
61See In re StarLink Corn Products Liability Litigation, 212 F. Supp. 2d 828 (N.D. Ill. 2002); In re Genetically Modified Rice Litigation, 666 F.Supp.2d 1004 (E.D. Missouri, 2009).
62A. Bryan Endres, Coexistence Strategies, The Common Law of Biotechnology and Economic Liability Risks, 13 Drake J. Agric. L. 115, 138 (2008).
63David Catechi, Two Wrongs Don’t Make a Patent Right, 56 Hastings L.J. 769, 780 (2005).
64David Catechi, Two Wrongs Don’t Make a Patent Right, 56 Hastings L.J. 769, 780--81 (2005).
65Complaint, Organic Seed Growers and Trade Assn. v. Monsanto Co., ¶¶ 161--63.
66SmithKline Beecham Corp. v. Apotex Corp., 403 F.3d 1331, 1342 (Fed. Cir. 2005).
67Monsanto Can. Inc. v. Schmeiser, [2004] 1 S.C.R. 902 ¶¶ 61--64 (Can.).
68Monsanto Can. Inc. v. Schmeiser, [2004] 1 S.C.R. 902 ¶ 95 (Can.).
69David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 186, 189 (2010--11).
70SmithKline Beecham Corp. v. Apotex Corp., 403 F.3d 1331, 1342 (Fed. Cir. 2005).
71Peter Thomison, Managing “Pollen Drift” to Minimize Contamination of Non-GMO Corn, AGF-153-04.
72Elizabeth Moulton, Inducing Immune Infringement: The Interplay Of Section 287(c) And Section 271(b), 13 Colum. Sci. &{} Tech. L. Rev. 206, 209 (2012).
76Elizabeth Moulton, Inducing Immune Infringement: The Interplay Of Section 287(c) And Section 271(b), 13 Colum. Sci. & Tech. L. Rev. 206, 212--14 (2012).
77David Costa, In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers, 3 Ky. J. Equine Agri. & Nat. Resources L. 179, 179 (2010--11); Amanda L. Kool, Halting Pig in the Parlor Patents: Nuisance Law as a Tool to Redress Crop Contamination, 50 Jurimetrics J. 453, 466 (2010); A. Bryan Endres, Coexistence Strategies, The Common Law of Biotechnology and Economic Liability Risks, 13 Drake J. Agric. L. 115, 138 (2008).
78Amanda L. Kool, Halting Pig in the Parlor Patents: Nuisance Law as a Tool to Redress Crop Contamination, 50 Jurimetrics J. 453, 456 (2010). See also Malla Pollack, Originalism, J.E.M., and the Food Supply, or Will the Real Decision Maker Please Stand Up?, 19 J. Envtl. L. & Litig. 495, 517--34 (2004); Siddharth Khanijou, Patent Inequity?: Rethinking the Application of Strict Liability to Patent Law in the Nanotechnology Era, 12 J. Tech. L. & Pol’y 179 (2007).
80Outlook for U.S. Agricultural Trade, AES-84 (2014).
81A. Bryan Endres, Coexistence Strategies, The Common Law of Biotechnology and Economic Liability Risks, 13 Drake J. Agric. L. 115, 117 (2008).
82Peter Thomison, Managing “Pollen Drift” to Minimize Contamination of Non-GMO Corn, AGF-153-04.
83Hilary Preston, Drift of Patented Genetically Engineered Crops: Rethinking Liability Theories, 81 Tex. L. Rev. 1153 (2003).
84Paul C. St. Amand, Daniel Z. Skinner, and Richard N. Peaden, Risk of Alfalfa Transgene Dissemination and Scale Dependent Effects, 101 Theor. Appl. Genet. 107 (1999).
85Allen E. Van Deynze, Frederick J. Sundstrom, and Kent J. Bradford, Pollen-Mediated Gene Flow in California Cotton Depends on Pollinator Activity, 45 Crop Science 1565 (2005).
86Allen E. Van Deynze, Frederick J. Sundstrom, and Kent J. Bradford, Pollen-Mediated Gene Flow in California Cotton Depends on Pollinator Activity, 45 Crop Science 1565 (2005).
87Peter Thomison, Managing “Pollen Drift” to Minimize Contamination of Non-GMO Corn, AGF-153-04 (citing Bob Nielsen, Tassel Emergence & Pollen Shed, Corny News Network (2010).
88Linda McGraw, Keeping Transgenic Pollen in Its Place, Agri. Research 7 (2001).
89Paul C. St. Amand, Daniel Z. Skinner, and Richard N. Peaden, Risk of Alfalfa Transgene Dissemination and Scale Dependent Effects, 101 Theor. Appl. Genet. 107 (1999).
90Brief for Amici Curiae, In Support of Plaintiff’s Opposition to Defendant’s Motion to Dismiss, Organic Seed Growers and Trade Assoc. v. Monsanto Co., Case 1:11-CV-2163-NRB-RLE (S.D.N.Y. 2011).
91Peter Thomison, Managing “Pollen Drift” to Minimize Contamination of Non-GMO Corn, AGF-153-04.
92Brief for Amici Curiae, In Support of Plaintiff’s Opposition to Defendant’s Motion to Dismiss, Organic Seed Growers and Trade Assoc. v. Monsanto Co., 17, No. 11-CV-2163-NRB-RLE (S.D.N.Y. 2011) (citing Lyle F. Friesen, Alison G. Nelson and Rene C. Van Acker, Evidence of Contamination of Pedigreed Canola (Brassica Napus) Seedlots in Western Canada with Genetically Engineered Herbicide Resistance Traits, 95 Agron. J. 1342 (2003).
93Hilary Preston, Drift of Patented Genetically Engineered Crops: Rethinking Liability Theories, 81 Tex. L. Rev. 1153, 1168 (2003).
94Peter Thomison, Managing “Pollen Drift” to Minimize Contamination of Non-GMO Corn, AGF-153-04.
95Monsanto Can. Inc. v. Schmeiser, [2004] 1 S.C.R. 902 (Can.).
96Drew L. Kershen, Of Straying Crops and Patent Rights, 43 Washburn L.J. 575, 586 (2004).
97Amanda L. Kool, Halting Pig in the Parlor Patents: Nuisance Law as a Tool to Redress Crop Contamination, 50 Jurimetrics J. 453, 466 (2010). See also E. Freeman, Settling the Matter --- Part 5.
98Jakub Kwieciński, Genetically modified abominations? 10 EMBO Rep. 1187 (2009).
99See Hilary Preston, Drift of Patented Genetically Engineered Crops: Rethinking Liability Theories, 81 Tex. L. Rev. 1153, 1172 (2003). See also David Catechi, Two Wrongs Don’t Make a Patent Right, 56 Hastings L.J. 769, 790 (2005).

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Klaassen v. Allegro Dev. Corp.: Putting the CEO Out to Pasture http://www2.stetson.edu/advocacy-journal/klaassen-v-allegro-dev-corp-putting-the-ceo-out-to-pasture/ http://www2.stetson.edu/advocacy-journal/klaassen-v-allegro-dev-corp-putting-the-ceo-out-to-pasture/#comments Fri, 27 Mar 2015 01:16:39 +0000 http://www2.stetson.edu/advocacy-journal/?p=370

Alexandra Taylor1 1 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.

2 Stetson J. Advoc. & L. 264 (2015)

I. Introduction

Imagine taking a ride in an airplane and, without notice or warning, you are ejected from your seat. Surely you must have some remedy for this action! Not if you are the CEO of a Delaware corporation. The Supreme Court of Delaware recently affirmed the Court of Chancery’s ruling that notice is not required before a board of directors ejects its CEO and controlling stockholder.2 2 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035 (2014).
This paper will explore the following question: What are the implications of the Supreme Court of Delaware’s ruling under Klaassen v. Allegro Dev. Corp. and, since Florida courts rely heavily upon Delaware corporate law to establish their own corporate doctrines, how will the Court’s ruling affect Florida corporate law?3 3 Stuart R. Cohn, Dover Judicata: How Much Should Florida Courts Be Influenced by Delaware Corporate Law Decisions? 83 Fla. B.J. 20 (2009).

II. Setting the Stage: Klaassen v. Allegro Dev. Corp.

A. Creating the Corporation

Eldon Klaasen (hereinafter “Klaassen”) is the founder and former majority shareholder of common stock of Allegro Development Corporation. In 2007, Klaassen solicited funds from prospective investors in order to monetize a portion of his holdings in Allegro Development Corporation (hereinafter “Allegro”). Klaassen’s solicitation resulted in investments by two entities: North Bridge Growth Equity 1, L.P. and Tudor Ventures III, L.P. (collectively, the “Series A Investors”). The Series A Investors received Series A Preferred Stock of Allegro in exchange for $40 million.4 4 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1037--38 (2014).
Aware of their holdings in Allegro as a five-year investment, the Series A Investors secured guarantees in anticipation of their eventual exit from the company. In accordance with the investment transaction, Klaassen, Allegro, and the Series A Investors entered into a Stockholder’s Agreement (hereinafter “the Agreement”) and amended and restated both Allegro’s Charter and Bylaws, creating the framework by which Klaassen and the Series A Investors would share control of Allegro’s Board.5 5 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1038 (2014).
The Board consisted of two outside directors, George Simpkins and Raymond Hood (hereinafter “the Outside Directors”), two directors designated by the Series A Investors, Robert Forlenza and Michael Pehl (hereinafter “the Series A Directors”) and the CEO, namely Klaassen himself. Neither Klaassen nor the Series A Investors held the majority in the Board. The Outside Directors held the swing votes.6 6 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1038 (2014).

B. Underperformance

In 2009, the Series A Directors became concerned about both Allegro’s underperformance and Klaassen’s managerial abilities. The company was failing to perform as anticipated,7 7 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1038--39 (2014). missing its 2009 revenue target by 30%. Poor performance continued throughout 2010, and the Series A Directors expressed their desire for a new CEO. The Outside Directors, however, convinced the Series A Directors to continue to support Klaassen as Allegro’s CEO.
In 2012, frustration with Klaassen grew stronger. Klaassen fired Allegro’s Senior Vice President of Sales four days before the end of the company’s best sales quarter to date, but had no ready replacement in mind. He also ignored the board’s requests to wait until the quarter had ended. On July 19, 2012, at a regularly scheduled board meeting, the Allegro board discussed the Series A Investors’ right of redemption, although Klaassen stated that he was not concerned with it. During the board meeting, the Outside and Series A Directors held an Executive Session at which they discussed Klaassen’s performance as CEO.
After the board meeting, the Outside Directors had a private discussion with Klaassen, during which Hood encouraged Klaassen to compromise with the Series A Investors. Klaassen continued to express the view that he was not concerned with the redemption right because he felt that he had the ability to stonewall the Investors. The Outside Directors disagreed and reminded Klaassen that, with three director votes, the board could easily terminate him as CEO.8 8 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1040 (2014).
By mid-October, the Outside and Series A Directors had decided to replace Klaassen at the regularly-scheduled Board meeting on November 1, 2012. In preparing for Klaassen’s removal, the Outside and Series A Directors held two preparatory conference calls where they asked their lawyers to prepare a draft resolution removing Klaassen as CEO. They decided not to forewarn Klaassen that they planned to terminate him, because they were concerned about how Klaassen would react while still having access to Allegro’s intellectual property, bank accounts, and employees.
The board meeting took place on November 1, 2012, as scheduled. The Outside and Series A Directors met in another Executive Session, where they confirmed their decision to remove Klaassen as CEO. Klaassen then returned to the board meeting, and Pehl informed Klaassen that the board was removing him from CEO and replacing him with Hood. With Klaassen abstaining, the Allegro board voted, effectuating Klaassen’s removal, and appointing Hood as interim CEO.
After Klaassen’s termination, his actions suggested that he had accepted his termination — by, for example, offering to help Hood transition into the CEO position. Later, however, Klaassen started to express dissatisfaction at this turn of events. He began to undermine Hood and, in November, Klaassen sent a detrimental email to ExxonMobil (a major Allegro client), saying that the company was dysfunctional and engaged in a “bitter” shareholder dispute.
On June 5, 2013, Klaassen sent a letter to Ducanes, Pehl, and Forlenza, claiming that his removal as CEO was invalid and that he remained CEO. Klaassen then in his capacity as Allegro’s majority shareholder, delivered two written consents, which purported to: (i) remove Hood and Simpkins from the Board, (ii) elect Mr. John Brown to the vacant Common Director seat, and (iii) elect Mr. Dave Stritzinger and Mr. Ram Velidi to the Board.9 9 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1042 (2014).

C. The Court of Chancery

Additionally, on June 5, 2013, Klaassen filed suit in Delaware with the Court of Chancery10 10 Del. Code Ann. tit. 8, § 225. against Allegro, Raymond Hood, George Patrich Simpkins, Jr., Michael Pehl, and Robert Forlenza (hereinafter “the Director Defendants”), claiming that:
  1. He remained CEO of Allegro, and
  2. As a holder of the majority of Allegro’s common stock, he represented a majority of Allegro’s voting power, and was thus acting validly, through written consent, to (a) remove two of the directors on Allegro’s Board, (b) fill those vacancies, and (c) fill a pre-existing vacancy on the board.
The judgment of the Court of Chancery addressed two issues:
  1. Whether the Allegro board of directors had validly removed Klaassen from his position as CEO of the company at a regularly scheduled board meeting; and
  2. Whether, and to what degree, Klaassen’s written consent validly effected corporate action.
The court then held that Eldon Klaassen:
  1. Could not challenge his removal as CEO;
  2. Continues to serve as a director on Allegro’s Board;
  3. Validly removed defendant Simpkins from the Board, but did not validly remove defendant Hood from the Board;
  4. Did not validly fill the vacancy created by Simpkins’ removal; and
  5. Validly filled a pre-existing vacancy with non-party Brown.11 11 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1042 (2014).

D. Grounds of Appeal

On appeal to the Delaware Supreme Court, Klaassen claimed that the Court of Chancery erred in finding that his claim was barred by equitable defenses, specifically arguing that the Director Defendants violated Delaware corporate law by not giving him advance notice of their plan to remove him as CEO and by exercising deception in calling the Board meeting.
Klaassen argued that, as a consequence of the Director Defendants’ violation of Delaware law, his removal as Allegro’s CEO was void, as opposed to voidable, and thus his challenge to his removal was not subject to equitable defenses. Lastly, Klaassen claimed that supposing his removal as CEO was voidable, and not void as he claims, the Court of Chancery erred in ruling that his claim was barred by equitable defenses.12 12 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1043 (2014).
The Delaware Supreme Court divided Klaassen’s challenges into two separate claims:
  1. The lack of advance notice given to Klaassen of the Board’s plan to terminate him; and
  2. The use of deception in carrying out that plan.
In regards to Klaassen’s first claim, the issue presented to the Court was:

[W]hether Klaassen’s claim — that the Director Defendants were required to give him advance notice of their plan to remove him as CEO at the November 1 Board meeting — is cognizable under Delaware law.13 13 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1043 (2014).

Klaassen’s second claim presented two issues to the Court: first, “whether Klaassen’s deception-based claim is subject to equitable defenses,” and second, “if so, whether that claim is barred by the doctrines of laches and/or acquiescence.”14 14 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1043 (2014).

E. The Holding

The Court concluded that Klaassen’s first claim was not cognizable under Delaware law.
So far as his second claim was concerned, the Court held that “to the extent that Klaassen’s claim may be cognizable, it is equitable in nature,” because “Klaassen’s removal as CEO was … voidable and subject to the equitable defenses of laches and acquiescence,” while “the Court of Chancery properly found that Klaassen acquiesced in his removal as CEO, and is therefore barred from challenging that removal.”15 15 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1037 (2014).

III. Delaware: The Corporate King

A. Delaware Law before Klaassen

Klaassen raises issues involving multiple aspects of Delaware corporate law, specifically, notice of board meetings, removal of officers, and the power vested in a board to run the business and affairs of a corporation. Additionally, this case raises issues regarding equitable principles of law.
Delaware corporate law is well established on the question of notice requirements. Directors are required to be given notice of special board meetings so that, without due notice, all acts done at such a meeting are void. There is, however, no notice requirement for regular board meetings. It thus follows that there can be no requirement to give directors advance notice of the purpose of a regular board meeting. The Court in Klaassen strengthened this long-standing Delaware law by expressly holding that an officer can be removed at a regular board meeting without notice.16 16 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1043 (2014).
While notice requirements are firmly grounded in Delaware corporate law, there appears to be tension between a principle of equity and statutory law.17 17 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035 (2014). It is a cornerstone of Delaware corporate law that the “business and affairs of every corporation … shall be managed by or under the direction of a board of directors …”18 18 Del. Code Ann. tit. 8, § 141.
However, Delaware case law has created a principle of equity that causes friction with this statute. This principle of equity holds that the congruence of two roles in one person as a controlling shareholder and a director, often referred to as a “super director,” justifies giving that super director advance notice of the purpose of a board meeting.
For the purposes of this principle, it is key that one person holds both roles, as neither status alone would justify giving notice. But where one person does hold both roles, the Court of Chancery in Delaware had previously ruled, in Adlerstein v. Wertheimer, that where no notice is given with the purpose of preventing a super director from exercising his or her contractual rights to put a halt to the other directors’ scheme, that purpose is inequitable.19 19 Adlerstein v. Wertheimer, C.A. No. 19101, 2002 at *9 n.28 (Del. Ch. 2002).
An additional area of Delaware corporate law without firm grounding is the distinction between void and voidable acts effectuated by a board of directors. While the distinction between void and voidable acts has been previously established,20 20 Hoch v. Alexander, CIV. A. 11-217-RGA, 2013 at *1, *6 (D. Del. July 2, 2013); Adams v. Calvarese Farms Maint. Corp., Inc., CIV.A. 4262-VCP, 2010 at *1, *8 (Del. Ch. Sept. 17, 2010); Moore Bus. Forms, Inc. v. Cordant Holdings Corp., CIV.A. 13911, 1998 at *1, *9 (Del. Ch. Feb. 4, 1998); Nevins v. Bryan, 885 A.2d 233, 245 (Del. Ch. 2005) (quoting Michelson v. Duncan, 407 A.2d 211, 218-219 (Del. 1979). noteworthy Delaware case law has blurred this distinction.

The essential distinction between voidable and void acts is that the former are those which may be found to have been performed in the interest of the corporation but beyond the authority of management, as distinguished from acts which are ultra vires, fraudulent or gifts or waste of corporate assets.21 21 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1046 (2014), quoting Michelson v. Duncan, 407 A.2d 211, 218--19 (1979); VGS, Inc. v. Castiel, C.A. 17995, 2004 at *1 (Del. Ch. Aug. 31, 2000); Fogel v. U.S. Energy Sys., Inc., Civ. A. No. 3271-CC, 2007 at *1 (Del. Ch. Dec. 13, 2007).

Accordingly, a plaintiff’s claim involving voidable acts is subject to equitable defenses. The blurring of this long-standing distinction occurs in four notable Court of Chancery decisions: Koch, VGS, Adlerstein, and Fogel.22 22 Stearn v. Koch, 628 A. 2d 44 (Del. 1993); VGS Inc. v. Castiel, C.A. No. 17995, 2000(Del. Ch. Apr. 22, 2004); Adlerstein v. Wertheimer, C.A. No. 19101, 2002 (Del. Ch. Jan. 25, 2002); Fogel v. U.S. Engery Sys. Inc., C.A. No. 3271-CC, 2007 (Del. Ch. Dec. 13, 2007). Recognizing the distinction between void and voidable, and how it has been translated into case law, is extremely important, because Klaassen based his claim on the opinions of these four precedents. The Delaware Supreme Court ultimately found that the authors of those opinions “may have been less than precise in their use of the terms ‘void’ and ‘voidable.’”23 23 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1047 (2014).
The opinions in these cases state that “board action carried out by means of deception is per se void, not voidable.”24 24 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1047 (2014). This contradicts the previously-stated distinction between void and voidable acts. The distinction between these different types of acts is of great importance, because voidable acts are subject to equitable defenses, while void acts are not.

B. Delaware Law after Klaassen

The Delaware Supreme Court’s ruling in Klaassen will impact Delaware law extensively. In Klaassen, the Court solidified the law on notice requirements, made an unwavering distinction between void and voidable acts, including making a correction to past cases that misused the term, partially overruled two prominent Delaware cases,25 25 Stearn v. Koch, 628 A. 2d 44 (Del. 1993); Fogel v. U.S. Energy Sys. Inc., C.A. No. 3271-CC, 2007 at *1 (Del. Ch. Dec. 13, 2007). and distinguished Delaware case law.26 26 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035 (2014).
The implications of Klaassen are far reaching, affecting corporate law within and outside of the state of Delaware.27 27 Mullen v. Acad. Life Ins. Co., 705 F.2d 971, 974 n.3 (8th Cir. 1983). However, the Court did not address the tension between advance notice owed to a super director, whether based on equity or statutory law, explaining that addressing this tension was not required to resolve Klaassen’s appeal.
This was, perhaps, a missed opportunity. An authoritative ruling by the Delaware Supreme Court is necessary to dispose of the tension between the equitable notice requirement for a super director and the statutory principle of board management of a corporation,28 28 Del. Code Ann. tit. 8, § 141. as these two notions create great tension in Delaware corporate law, in a state where principles of equity are held to an extremely high standard.
In furtherance of his notice claim, Klaassen asserted that four decisions from the Court of Chancery

establish the rule that a director who also is a shareholder or officer of a corporation is entitled to advance notice of any matter to be considered at a board meeting, that may affect that director’s specific interests.29 29 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1044 (2014), referring to Stearn v. Koch, 628 A. 2d 44 (Del. 1993); VGS Inc. v. Castiel, C.A. No. 17995, 2000(Del. Ch. Apr. 22, 2004); Adlerstein v. Wertheimer, C.A. No. 19101, 2002 (Del. Ch. Jan. 25, 2002); Fogel v. U.S. Engery Sys. Inc., C.A. No. 3271-CC, 2007 (Del. Ch. Dec. 13, 2007).

The Delaware Supreme Court made clear that Klaassen misstated this rule. Koch, Adlerstein, and Fogel all involved disputed board actions that occurred at special board meetings, and therefore did not support Klaassen’s notice claim. Additionally, VGS is factually distinguishable from Klaassen because it involved actions within a limited liability company.30 30 Stearn v. Koch, 628 A. 2d 44 (Del. 1993); VGS Inc. v. Castiel, C.A. No. 17995, 2000 at *1 (Del. Ch. Apr. 22, 2004); Adlerstein v. Wertheimer, C.A. No. 19101, 2002 at *1 (Del. Ch. Jan. 25, 2002); Fogel v. U.S. Engery Sys. Inc., C.A. No. 3271-CC, 2007 at *1 (Del. Ch. Dec. 13, 2007).
As noted previously, directors are not entitled to notice of regular board meetings. Consequently, directors are not entitled to notice of the purpose or agenda of a regular board meeting. In its opinion, the court reinforced this long-standing law, while at the same time distinguishing Delaware precedent from Klaassen. In Klaassen, the Delaware Supreme Court has made it clear that directors can remove an officer at a regular board meeting without notice.31 31 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1043 (2014). The implication is that if a board wishes to terminate an officer, it can simply do so at a regular board meeting. There is no legal requirement to give notice to that officer that he will be terminated at the board meeting, nor notice that the purpose of the meeting is his termination.
Additionally, the Court held that Allegro’s Bylaws did not override Delaware’s default rule regarding notice.32 32 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1045 (2014). Here, the court puts forth that if Allegro’s Bylaws had a provision to override the default rule on notice, Klaassen could potentially have a successful claim. An implication of this acknowledgment is that corporations will include in their bylaws provisions to override the default rule on notice requirements.
Suggestions for this provision should state that corporate officers can only be terminated at special board meetings. This would have the effect of requiring notice to that officer. A further suggestion would be an exception to the default rule: if an officer is going to be terminated at a regular meeting, that officer is entitled to notice of the meeting itself and/or the purpose of that meeting.
Challenging his removal, Klaassen relied heavily on Adlerstein, arguing that as a principle of equity, he was required to be given notice of the board meeting at which he was terminated.33 33 Alderstein v. Weirtheimer, C.A. No. 19101, 2002 (Del. Ch. Jan. 25, 2002). The Delaware Supreme Court took the opportunity to clearly distinguish Adlerstein from Klaassen.34 34 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035 at n. 61 (2014).
In Adlerstein, a board approved the issuance of blank check preferred stock to an outside investor at a special meeting, with the stock’s purpose to give the outside investor voting power in order to oust Adlerstein from the board. Adlerstein, CEO and controlling shareholder of the company, was not given advance notice that the board’s purpose in issuing the preferred stock was to destroy his voting power.
In Adlerstein, the court found he “had an equitable right to (i) receive advance notice of the other directors’ plans and (ii) decide whether to exercise his contractual power as a stockholder to prevent the board from taking action.” The court further held that the actions taken at the special meeting must be vacated because the board’s failure to give Adlerstein advance notice amounted to “trickery”35 35 Adlerstein v. Wertheimer, C.A. No. 19101, 2002 at *9, *11 (Del. Ch. Jan. 25, 2002). and prevented Adlerstein from exercising his rights as majority stockholder to pre-empt the board’s plan and remove those directors.36 36 Klaassenv. Allegro Dev. Corp., 106 A.3d 1035 at n. 61. Compare with Stearn v. Koch, 628 A. 2d 44, 737--738 (Del. 1993), where the Court found that Stearn could have protected himself by exercising his right to remove a director if he had seen the draft resolutions calling for his removal prior to the board meeting.
Adlerstein can be factually distinguished from Klaassen in that in the former case, the board sought to remove Adlerstein as a director, and then to remove him from the company in his capacity as Chairman and CEO.37 37 Adlerstein v. Wertheimer, C.A. No. 19101, 2002 at *1 (Del. Ch. Jan. 25, 2002). In accordance with Delaware law, a director must be removed by a shareholder vote.38 38 Del. Code Ann. tit. 8, § 141(k).
Adlerstein, by holding a majority of the company’s voting power, presented an issue for the board. To oust him, the board developed a plan to create Class C Stock, through the issuance of blank-check preferred, which is a stock whose designation is fixed by the Board of Directors instead of the certificate of incorporation.39 39 Robert M. Bass Grp., Inc. v. Evans, 552 A.2d 1227, 1233 n.16 (Del. Ch. 1988). The board would then grant all of the Class C Stock to an outside investor, thereby giving the investor voting power to vote Adlerstein off the board.40 40 Adlerstein v. Wertheimer, No. 19101, 2002 at *2, 9 (Del. Ch. Jan. 25, 2002). In contrast, Allegro’s Board sought only to terminate Klaassen in his capacity as CEO of the company, not to remove him as a director. The Director Defendants, determining Klaassen was unfit to continue as CEO of Allegro, only sought to remove him as CEO, and the Director Defendants did so validly.41 41 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1043 (2014).
In Klaassen, the Delaware Supreme Court declares regretfully that “in writing” Koch, VGS, Adlerstein, and Fogel, “the authors may have been less than precise in their use of the terms ‘void’ and ‘voidable.’” The Delaware Supreme Court recognized that “In Fogel and Koch, for example, the court stated that where deception is employed in the course of a board meeting, any action taken thereat is ‘void.’” Mistakenly, the four mentioned opinions describe use of deceptive tactics surrounding a board meeting as “void” while acknowledging that said “void” deceptive action is remediable. In actuality, a remediable action is voidable, and not void. With great significance, the Delaware Supreme Court, in reaching its decision on Klaassen’s claims, overrules both Koch and Fogel “[t]o the extent that those decisions can fairly be read to hold that board action taken in violation of an equitable rule is void.”42 42 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1047 (2014).
Klaassen challenged his removal from the position of CEO “as a violation of ‘generally accepted notions of fairness.’”43 43 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1046 (2014). His claim, being equitable in nature, was susceptible to equitable defenses, and was defeated by the Defendant Directors’ equitable defenses, specifically the doctrine of acquiescence:

Acquiescence arises where a complainant has full knowledge of his rights and the material facts and

(1) remains inactive for a considerable time; or

(2) freely does what amounts to recognition of the complained of act; or

(3) acts in a manner inconsistent with the subsequent repudiation, which leads the other party to believe the act has been approved.44 44 NTC Grp., Inc. v. W. Point-Pepperell, Inc., CIV. A. 10665, 1990 at *1, *5, (Del. Ch. Sept. 26, 1990).

IV. Florida: Feeling The Effects of Klaassen

A. The Relevant Florida Law

Florida corporate law can be compared to and distinguished from Delaware corporate law. Florida’s corporate notice requirements are firmly rooted in statutory law:

(1) Unless the articles of incorporation or bylaws provide otherwise, regular meetings of the board of directors may be held without notice of the date, time, place, or purpose of the meeting.45 45 Fla. Stat. § 607.0822.

Under Florida corporate law, a regular board meeting can be held without notice of the purpose of the meeting unless the corporation’s articles of incorporation or bylaws provide otherwise. This is in line with Delaware law, as the Delaware Supreme Court has ruled that officers can be terminated at regular board meetings without notice of the termination as the purpose of the meeting.46 46 Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1043 (2014). Distinguishable from Delaware corporate law, Florida corporate law does not have recognized tension with equitable principles regarding notice requirements.
Florida’s requirements and duties for a corporate board are as follows:

All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation managed under the direction of, its board of directors, subject to any limitation set forth in the articles of incorporation or in an agreement …47 47 Fla. Stat. § 607.0801.

This statute is consistent with Delaware’s corporate law, vesting the powers and discretion in running the business and affairs of a corporation in a board of directors.48 48 Compare with 8 Del. C. § 141 (2014).
Florida law is also established on a board’s ability to remove officers: “A board of directors may remove any officer at any time …” This aspect of Florida’s corporate law further highlights the power and discretion vested in a board to run the business and affairs of a corporation, and further highlights the board’s ability to remove officers at a regular board meeting without notice.49 49 Fla. Stat. § 607.0801; Fla. Stat. § 607.0842.

B. The Implications of Klaassen for Florida Law

Based on Florida’s current corporate law and Delaware’s influence on it, I foresee the following implications for Florida corporate law.
On notice requirements for board meetings, I see the implications for Florida being essentially the same as the implications for Delaware. If a board wants to terminate an officer, such as a CEO, the board will do so at a regular board meeting. The advantage of this implication lies with the board of directors. Unless a corporation’s articles of incorporation or bylaws provide otherwise, a CEO-director lacks essentially any protection in regards to notice of his removal. This is a great disadvantage to a super director, who has the power to trump a board’s removal actions, but cannot use his power, as the law states that a board is not required to give him notice, thus preventing him from exercising his power.50 50 See Adlerstein v. Wertheimer, C.A. No. 19101, 2002 at *9 (Del. Ch. Jan. 25, 2002).
This leads to another implication: I anticipate that corporations will add limitations on officer removal to their articles of incorporation and bylaws. These limitations could include limiting the board’s ability to terminate an officer only if notice of the purpose of the meeting at which termination will occur is given. A limitation that termination can only occur at special meetings would be fruitless, as under Florida corporate law notice of the purpose of special board meetings is not required. However, this limitation would not be fruitless if the corporation’s articles of incorporation or bylaws supplemented that notice of the purpose of special meetings is required.51 51 Fla. Stat. § 607.0822.
Conversely, corporations may choose to ignore adding limitations to their articles and bylaws, as these limitations may conflict with the power vested in the board of directors to run the business and affairs of a corporation.52 52 Fla. Stat. § 607.0801. Compare the tension between Delaware’s equitable principles and Del. Code Ann. tit. 8, § 225.

V. Conclusion

Delaware corporate law is ever evolving, and extremely influential on Florida corporate law. Through the Supreme Court’s decision in Klaassen v. Allegro Dev. Corp., the Court has solidified, clarified, or overruled existing Delaware corporate law. Though the Court extensively analyzed Delaware statutory law, case law, and principles of equity, clarification is needed to address the tension between equitable notice requirements for a super director and the very foundation of Delaware corporation law: that a corporation is managed under the direction of its board of directors.

Footnotes

1Editor, 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.
2Klaassen v. Allegro Dev. Corp., 106 A.3d 1035 (2014).
3Stuart R. Cohn, Dover Judicata: How Much Should Florida Courts Be Influenced by Delaware Corporate Law Decisions? 83 Fla. B.J. 20 (2009).
4Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1037--38 (2014).
5Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1038 (2014).
6Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1038 (2014).
7Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1038--39 (2014).
8Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1040 (2014).
9Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1042 (2014).
10Del. Code Ann. tit. 8, § 225.
11Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1042 (2014).
12Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1043 (2014).
13Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1043 (2014).
14Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1043 (2014).
15Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1037 (2014).
16Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1043 (2014).
17Klaassen v. Allegro Dev. Corp., 106 A.3d 1035 (2014).
18Del. Code Ann. tit. 8, § 141.
19Adlerstein v. Wertheimer, C.A. No. 19101, 2002 at *9 n.28 (Del. Ch. 2002).
20Hoch v. Alexander, CIV. A. 11-217-RGA, 2013 at *1, *6 (D. Del. July 2, 2013); Adams v. Calvarese Farms Maint. Corp., Inc., CIV.A. 4262-VCP, 2010 at *1, *8 (Del. Ch. Sept. 17, 2010); Moore Bus. Forms, Inc. v. Cordant Holdings Corp., CIV.A. 13911, 1998 at *1, *9 (Del. Ch. Feb. 4, 1998); Nevins v. Bryan, 885 A.2d 233, 245 (Del. Ch. 2005) (quoting Michelson v. Duncan, 407 A.2d 211, 218-219 (Del. 1979).
21Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1046 (2014), quoting Michelson v. Duncan, 407 A.2d 211, 218--19 (1979); VGS, Inc. v. Castiel, C.A. 17995, 2004 at *1 (Del. Ch. Aug. 31, 2000); Fogel v. U.S. Energy Sys., Inc., Civ. A. No. 3271-CC, 2007 at *1 (Del. Ch. Dec. 13, 2007).
22Stearn v. Koch, 628 A. 2d 44 (Del. 1993); VGS Inc. v. Castiel, C.A. No. 17995, 2000(Del. Ch. Apr. 22, 2004); Adlerstein v. Wertheimer, C.A. No. 19101, 2002 (Del. Ch. Jan. 25, 2002); Fogel v. U.S. Engery Sys. Inc., C.A. No. 3271-CC, 2007 (Del. Ch. Dec. 13, 2007).
23Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1047 (2014).
24Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1047 (2014).
25Stearn v. Koch, 628 A. 2d 44 (Del. 1993); Fogel v. U.S. Energy Sys. Inc., C.A. No. 3271-CC, 2007 at *1 (Del. Ch. Dec. 13, 2007).
26Klaassen v. Allegro Dev. Corp., 106 A.3d 1035 (2014).
27Mullen v. Acad. Life Ins. Co., 705 F.2d 971, 974 n.3 (8th Cir. 1983).
28Del. Code Ann. tit. 8, § 141.
29Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1044 (2014), referring to Stearn v. Koch, 628 A. 2d 44 (Del. 1993); VGS Inc. v. Castiel, C.A. No. 17995, 2000(Del. Ch. Apr. 22, 2004); Adlerstein v. Wertheimer, C.A. No. 19101, 2002 (Del. Ch. Jan. 25, 2002); Fogel v. U.S. Engery Sys. Inc., C.A. No. 3271-CC, 2007 (Del. Ch. Dec. 13, 2007).
30Stearn v. Koch, 628 A. 2d 44 (Del. 1993); VGS Inc. v. Castiel, C.A. No. 17995, 2000 at *1 (Del. Ch. Apr. 22, 2004); Adlerstein v. Wertheimer, C.A. No. 19101, 2002 at *1 (Del. Ch. Jan. 25, 2002); Fogel v. U.S. Engery Sys. Inc., C.A. No. 3271-CC, 2007 at *1 (Del. Ch. Dec. 13, 2007).
31Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1043 (2014).
32Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1045 (2014).
33Alderstein v. Weirtheimer, C.A. No. 19101, 2002 (Del. Ch. Jan. 25, 2002).
34Klaassen v. Allegro Dev. Corp., 106 A.3d 1035 at n. 61 (2014).
35Adlerstein v. Wertheimer, C.A. No. 19101, 2002 at *9, *11 (Del. Ch. Jan. 25, 2002).
36Klaassenv. Allegro Dev. Corp., 106 A.3d 1035 at n. 61. Compare with Stearn v. Koch, 628 A. 2d 44, 737--738 (Del. 1993), where the Court found that Stearn could have protected himself by exercising his right to remove a director if he had seen the draft resolutions calling for his removal prior to the board meeting.
37Adlerstein v. Wertheimer, C.A. No. 19101, 2002 at *1 (Del. Ch. Jan. 25, 2002).
38Del. Code Ann. tit. 8, § 141(k).
39Robert M. Bass Grp., Inc. v. Evans, 552 A.2d 1227, 1233 n.16 (Del. Ch. 1988).
40Adlerstein v. Wertheimer, No. 19101, 2002 at *2, 9 (Del. Ch. Jan. 25, 2002).
41Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1043 (2014).
42Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1047 (2014).
43Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1046 (2014).
44NTC Grp., Inc. v. W. Point-Pepperell, Inc., CIV. A. 10665, 1990 at *1, *5, (Del. Ch. Sept. 26, 1990).
45Fla. Stat. § 607.0822.
46Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1043 (2014).
47Fla. Stat. § 607.0801.
48Compare with 8 Del. C. § 141 (2014).
49Fla. Stat. § 607.0801; Fla. Stat. § 607.0842.
50See Adlerstein v. Wertheimer, C.A. No. 19101, 2002 at *9 (Del. Ch. Jan. 25, 2002).
51Fla. Stat. § 607.0822.
52Fla. Stat. § 607.0801. Compare the tension between Delaware’s equitable principles and Del. Code Ann. tit. 8, § 225.

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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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