The Legal Intelligencer Blog

Do Jurors Pay Attention to What Lawyers Say?

By Bruce Merenstein
Special to the Legal

Most trial lawyers would consider their opening statement and closing argument two of the most important parts of a trial. The opening offers the lawyer his or her first chance to set out a case for the jury and lay the foundation for the story to be told throughout the trial. Thomas Mauet, in his “Fundamentals of Trial Techniques”, notes that “opening statements can and often do make the difference in the outcome of a case.” The closing argument is the lawyer’s last opportunity to reach the jury and convince it to see the facts his or her way. It also offers the lawyer the one chance during the trial to directly urge the jury to reach the result the lawyer has been working toward since the beginning of the case. Yet, Pennsylvania’s appellate courts regularly reject claims of trial error when lawyers make allegedly improper comments during opening statements or closing arguments, on the ground that what the lawyers say has little effect on the jury.

Consider a recent decision from the Pennsylvania Superior Court, Commonwealth v. Lewis. Erin Lewis was a probation officer who became involved in a relationship with one of the probationers she was supervising. When they took a trip together to Atlantic City, Lewis falsely noted in the probationer’s record that he was traveling to Atlantic City with family. After she left her job, the truth of her relationship and her trip to Atlantic City were discovered and she was charged with tampering with public records or information.

At trial, the prosecutor referred in his opening statement to the Luzerne County bribery scandal to — according to the Superior Court — “illustrate his point that there is no type of ‘minor’ public misconduct.” The trial court sustained Lewis’ objection to the comment but denied her request for a mistrial. On appeal, the Superior Court found no error in this ruling, holding that the comments “were not so prejudicial as to deny Appellant a fair trial.” In doing so, the court invoked a rationale that Pennsylvania appellate courts typically rely upon when rejecting claims regarding improper lawyer comments: the trial court had “instructed the jury that opening statements of counsel were not evidence and could not be the basis for a verdict.”

Of course, jurors are instructed in almost every case that statements of counsel are not evidence and cannot form the basis for their verdict. Yet, it seems the only point of such an instruction is to give appellate courts a basis to reject claims of improper statements by counsel, because, despite the instruction, lawyers clearly believe that jurors do rely on the statements of counsel to reach their verdict. If they did not, what would be the point of opening statements and closing arguments? And why would lawyers put so much emphasis on them?

Ultimately, the Superior Court concluded, the prosecutor’s remark simply had no effect on the jury: “any possible impact from the prosecutor’s remark was marginal.” Again, this raises the question: if this comment (like so many others that are improper, but found to have no effect on the jury) had no impact on the jury, why did the prosecutor say it? Presumably, he believed it would impact the jury’s verdict or else he would not have said it. Indeed, the precise point of his comment was to “impact” the jury’s verdict.

The Lewis scenario is repeated regularly in Pennsylvania’s courts, usually in criminal cases, but occasionally in civil cases as well. In the vast majority of these cases, the Pennsylvania appellate courts invoke the twin rationale above: the jury was instructed to ignore the lawyer’s comments and the comments had no impact on the jury. If this is true, lawyers are wasting a great deal of time preparing and giving opening statements and closing arguments. Of course, despite what the appellate courts tell us, jurors are listening to what the lawyers say, for better or worse.

Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing [email protected].

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Pennsylvania Supreme Court Parts Ways With U.S. Supreme Court on Collateral Order Appeals

By Bruce Merenstein
Special to The Legal

About five years ago, my colleague Carl Solano and I wrote an article for the Pennsylvania Bar Association Quarterly regarding Pennsylvania’s collateral order doctrine. Among other things, we noted that the Pennsylvania Supreme Court has consistently relied on federal precedents involving the doctrine when construing Pennsylvania’s own version of the doctrine, now codified in Pennsylvania Rule of Appellate Procedure 313. Although this has traditionally been the case, in a significant recent decision involving privilege issues and the collateral order doctrine, the court has expressly rejected the reasoning and holding of a United States Supreme Court decision on the same topic.

Two years ago, in Mohawk Industries, Inc. v. Carpenter, the U.S. Supreme Court held that trial court orders compelling the production of allegedly privileged materials were not immediately appealable under the collateral order doctrine. The court reasoned that “postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney-client privilege.” The court also minimized the potential effect of its decision by noting the alternative avenues of appeal that litigants could pursue: an interlocutory appeal by permission; a petition for mandamus; or defiance of the disclosure order and eventual appeal of the sanctions order that would follow that defiance.

In its Nov. 23 decision in Commonwealth v. Harris, the Pennsylvania Supreme Court took an entirely different view of interlocutory appeals of privilege orders. The court noted that some of the alternative paths to review discussed by the U.S. Supreme Court either were not available in Pennsylvania or were more difficult to pursue. But the court’s conclusion that orders requiring disclosure of privileged materials are appealable under the collateral order doctrine was largely based on its fundamental disagreement with the Mohawk court’s view that “deferring review until final judgment does not meaningfully reduce the ex ante incentives for full and frank consultations between clients and counsel.” To the contrary, the state court noted: “Privileges exist as a rule to promote frank discussions, and we respectfully disagree with the United States Supreme Court that disallowing immediate appeals will not chill such discussions.”

The state court also noted that forcing litigants to disclose allegedly privileged materials and then wait until the end of a case to press an appeal of that disclosure ruling would “deprive the privilege-holder of any meaningful remedy.” If the privilege claim turned out to be meritorious, “a later appeal will not be able to undo the harm” from disclosure. In short, the state court adopted a position pressed by numerous practitioners who have criticized the Mohawk court’s seemingly naïve view of the real world of privileged communications and their disclosure: “Once putatively privileged material is in the open, the bell has been rung, and cannot be unrung by a later appeal.”

I stand by what Carl and I said five years ago in our collateral order doctrine article: “The [Pennsylvania] Supreme Court should reiterate, in case there is any doubt, that absent compelling reasons, the Pennsylvania appellate courts should look to the well-developed federal jurisprudence under the collateral order doctrine in interpreting and applying Rule 313.” In its recent decision reaffirming its prior rulings that orders requiring disclosure of allegedly privileged material are immediately appealable under the collateral order doctrine, the Pennsylvania Supreme Court thoroughly catalogued the “compelling reasons” to depart from the U.S. Supreme Court’s recent decision on the same issue.

Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing [email protected].

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

 

Superior Court Adopts Broad Protections for Attorney-Expert Communications

By Bruce Merenstein
Special to The Legal

Testifying experts and the lawyers who hire them have an extra reason to give thanks this holiday season. The Pennsylvania Superior Court, in an en banc decision issued on the eve of Thanksgiving, held that communications between lawyers and testifying experts are protected by the work-product doctrine and are not discoverable.

With certain exceptions, communications between counsel and testifying experts are protected from disclosure in federal court under an amendment to Rule 26 of the Federal Rules of Civil Procedure that became effective about a year ago. Around the same time, the Pennsylvania Civil Procedural Rules Committee recommended adoption of an amendment to Rule 4003.5 of the Pennsylvania Rules of Civil Procedure that would have protected from disclosure all communications between counsel and a testifying expert. While the Pennsylvania Supreme Court has not yet adopted the proposed amendment, the Superior Court held, in its 8-1 decision in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, that communications between counsel and a testifying expert are protected from disclosure by the work-product doctrine.

In Barrick, one of the defendants in a personal injury action served two subpoenas on the office of the injured plaintiff's treating physician, seeking all documents pertaining to the plaintiff, including communications between plaintiff's counsel and the treating physician. The office produced all medical records, but declined to produce the communications. Although defendant was unaware of it at the time, plaintiff had retained his treating physician as a testifying expert shortly before service of the second subpoena. The defendant moved for enforcement of the subpoena and, over plaintiff's objection, the trial court issued an order compelling production of the withheld communications. The plaintiff then filed an interlocutory appeal to the Superior Court.

A panel of the Superior Court initially affirmed the trial court order, in an opinion by Judge Judith Olson, joined by Judges John Musmanno and Anne Lazarus. The Superior Court then granted the plaintiff's application for re-argument en banc and, after a nine-judge en banc panel (that did not include any of the judges from the original panel) reheard the case, reversed the trial court order.

In a portion of the en banc opinion in which all nine judges joined, the court reiterated that Rule 4003.5, the rule governing discovery from experts, requires a party to seek expert discovery from the opposing party and not directly from a testifying expert. In Barrick, the subpoenas were served on the testifying expert because, at the time, the defendant was unaware that the treating physician had been retained as a testifying expert. But, the court emphasized, once the treating physician became a testifying expert, all discovery had to be directed to the party and not the expert.

The court also noted that Rule 4003.5 limits expert discovery to the facts and opinions to which the expert expects to testify and the grounds for his or her opinion. Any additional discovery is permitted only "upon cause shown," and pursuant to a court order, in accordance with Rule 4003.5(a)(2). Thus, the court held, the rule governing expert discovery does not permit disclosure of communications between counsel and a testifying expert unless the party seeking the disclosure demonstrates "cause" for such disclosure and obtains a court order compelling the disclosure of the communications.

The court did note that communications between counsel and a testifying expert could be encompassed in the required disclosure under Rule 4003.5 "if, for example, the expert specifically cited such correspondence as one basis for his or her expert opinion." Thus, where an expert discloses in his or her report or interrogatory responses under Rule 4003.5(a)(1) that his or her opinion is based in part on information communicated to the expert by counsel, such communications may be discoverable. That was not the case in Barrick, however, so this exception did not apply.

Plainly, the court could have reversed the trial court's order compelling disclosure of the communications between counsel and the testifying expert in Barrick solely on the basis of its holdings regarding Rule 4003.5. Yet, it went on to decide (in a portion of its opinion to which Judge Mary Jane Bowes dissented) that Rule 4003.3, the rule governing discovery of attorney work product, also precluded discovery of all communications between counsel and a testifying expert.

Rule 4003.3 broadly permits discovery of materials "prepared in anticipation of litigation or trial by or for another party or by or for that other party's representative," including the party's attorney, but precludes discovery of an attorney's mental impressions, conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. The court in Barrick held that this work-product protection precluded discovery of all communications between counsel and a testifying expert. Although the court indicated that communications that are directly relevant to an action (such as communications relevant to a reliance-on-counsel defense) may be discoverable, its holding precludes from discovery virtually all communications between counsel and a testifying expert.

The Barrick court did not address whether disclosure of attorney work-product to a third party (the testifying expert) constitutes waiver of the work-product protection, but Judge Bowes, in a footnote in her dissent, noted that she was unaware of any Pennsylvania authority supporting such a rule. In any event, given the broad holding in Barrick, it appears clear now that such disclosure does not waive work-product protection and that, in most situations, communications between counsel and a testifying expert are protected from disclosure, even without adoption of the proposed amendment to Rule 4003.5.

Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing [email protected].

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

 

Pulling the Curtain Back on Appellate Fact-Finding

By Bruce P. Merenstein
Special to the Legal

A few months ago, I posted a couple of articles about appellate courts' reliance on amicus curiae briefs and law review articles in deciding cases. In the second of those articles, I discussed a recent Pennsylvania Superior Court decision (Commonwealth v. Brown) that eschewed the use of amicus briefs when "the information contained in the amicus brief was not provided to the trial court for consideration."

Although I noted that this was an unusual position to take, given that amicus briefs almost always contain information not provided to the trial court (and are often found useful by appellate courts for this very reason), a recent U.S. Supreme Court decision highlights the more general problem alluded to in Brown: the use of secondary authority cited in appellate briefs to engage in what amounts to appellate fact-finding.

In Sykes v. United States, the Supreme Court had to determine whether a felony conviction in Indiana for fleeing from police officers in a vehicle was a "violent felony" for purposes of the federal Armed Career Criminal Act (ACCA). Six justices held that it was, while Justices Antonin Scalia, Ruth Bader Ginsburg and Elena Kagan dissented.

In his opinion for five of the justices in the majority, Justice Anthony M. Kennedy contended that statistics on the dangers of fleeing from police in a vehicle, as well as on injuries arising from other violent felonies listed in the ACCA, "confirm the commonsense conclusion that Indiana's vehicular flight crime is a violent felony." In support of this contention, Kennedy cited statistics from a number of recent studies by the International Association of Chiefs of Police, the Bureau of Justice Statistics, and the U.S. Fire Administration, as well as additional statistics from a concurring opinion by Justice Clarence Thomas.

The concurring opinion, in turn, relied on studies by the National Highway Traffic Safety Administration, the National Center for Statistics & Analysis and the Pennsylvania State Police Bureau of Research & Development, as well as reports to the California Legislature, an FBI Law Enforcement Bulletin, a law review article, a book and 10 newspaper articles.

As far as the majority and concurring opinions reveal, none of these studies, reports or articles were contained in the factual record created in the trial court, though they were presumably cited in the parties' (and any amici's) briefs. Yet, as Scalia complained in his dissent, "Supreme Court briefs are an inappropriate place to develop the key facts in a case. We normally give parties more robust protection, leaving important factual questions to district courts and juries aided by expert witnesses and the procedural protections of discovery." How true.

I have noted in another prior article the disturbing trend of some courts, including appellate courts, to rely on extra-record information from the Internet as if it is infallible and properly subject to judicial notice (a trend thankfully constrained in the 3rd Circuit by that court's 2007 decision in Victaulic Co. v. Tieman). But Scalia's dissenting opinion in Sykes pulls back the curtain on a similar trend in Supreme Court jurisprudence: heavy reliance on studies, statistics and other factual material contained in parties' and amici's briefs, when those factual materials were not presented in the district court, where they can be evaluated, challenged, and either accepted or rejected by the finder of fact (whether judge or jury).

The reliance on such factual information that is not part of the record created in the trial court to decide significant issues, such as whether fleeing police in a vehicle is a violent felony, raises serious concerns about the proper role of trial courts and appellate courts. Yet, as I've argued in prior articles, amicus briefs serve a useful function in elucidating difficult issues before appellate courts and providing a broader factual context for the adjudication of important issues that typically arise in the more narrow setting of disputes between individual parties.

There is no easy answer to this dilemma, but if appellate courts, including the Supreme Court, are to remain faithful to the well-established principle that the record on appeal is limited to the facts properly presented and accepted in the trial court, they must be careful not to cross the line from using secondary authority and amicus briefs for background or context to relying on them to find facts that are material to the issues before the appellate courts.

Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing [email protected].

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Right Time, Wrong Place

By Bruce P. Merenstein
Special to the Legal

The importance of meeting court deadlines goes without saying (though, given the number of judicial decisions involving untimely filings, maybe it cannot be said enough). In any event, lawyers well know the serious consequences, in both civil and criminal cases, of not filing complaints, motions or appeals from adverse decisions within the time periods set forth in statutes and court rules. Two recent Pennsylvania Superior Court decisions emphasize the importance of not only filing on time, but in the right place.

First, in Commonwealth v. Crawford, the trial court dismissed a prisoner's petition under the Post Conviction Relief Act on May 13, 2009. Twenty-eight days later (two days before the time for filing an appeal would expire), the prisoner, whose counsel had withdrawn following entry of final judgment, mailed a pro se notice of appeal to the trial judge's chambers. He failed, however, to send the notice of appeal to the clerk's office for the trial court. While the trial court found that the prisoner had taken sufficient steps to effectuate his appeal, the Superior Court disagreed, holding that the applicable rule required that the notice of appeal be sent to the clerk of courts. Thus, it quashed the appeal.

On the same day it issued its decision in Crawford, the Superior Court issued a decision in a dispute involving defaulted commercial loans, Home Savings & Loan Co. v. Irongate Ventures. In Home Savings, the lender filed two separate actions against defaulted borrowers and their guarantors: a complaint in confession of judgment and an action seeking foreclosure and sale of the property securing the loan.

Judgment eventually was entered for Home Savings in the foreclosure action and the property was sold to Home Savings. Under the Deficiency Judgment Act, where property is sold to a judgment creditor for an amount less than the judgment, the creditor may seek from the debtor the difference between the fair market value of the property (rather than its actual sale price following foreclosure) and the total amount of the judgment, but only if the creditor files a petition to fix the fair market value of the property within six months of the sale.

Home Savings filed such a petition, within six months of the sale, but in the confession action. After six months had passed following the sale, the debtors and guarantors sought to have the judgments against them marked satisfied. The trial court granted the debtors' and guarantors' petitions, and the Superior Court affirmed. The appeals court held that the plain language of the statute required the petition to fix fair market value to be filed in the action in which the property was sold.

While Home Savings filed its petition within the required six-month time period, it did so in the confession action and not in the foreclosure action in which the property was sold. Thus, it forfeited its right to seek any deficiency in its judgment and the judgment was properly marked satisfied.

The obvious lesson from Crawford and Home Savings is that filing a complaint, motion or appeal in a timely manner is only one required step; doing so in the proper place is an equally important step. And failing to file in the right place can turn a timely filing into an untimely one in no time at all.

Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing [email protected].

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Secondary Authority Revisited

By Bruce P. Merenstein
Special to the Legal

In 2002, then-3rd U.S. Circuit Court of Appeals Judge (and now U.S. Supreme Court Justice) Samuel Alito authored a single-judge opinion granting a motion for leave to file an amicus curiae brief. In explaining why he was granting the motion in Neonatology Associates, P.A. v. Commissioner, Alito noted that "some amicus briefs collect background or factual references that merit judicial notice," and some amici "are entities with particular expertise not possessed by any party to the case."

These observations comport with the historical basis of the amicus brief, which has its origins in the "Brandeis brief," a brief focusing on non-legal data and extra-record statistical information (though the original Brandeis brief, in the 1908 case of Muller v. Oregon, was actually a brief for the state of Oregon, a party to the action, and not an amicus).

Yet, in a recent Pennsylvania Superior Court decision, the court declined to rely on an amicus brief specifically because "the information contained in the amicus brief was not provided to the trial court for consideration."

In the case, Commonwealth v. Brown, the defendant challenged a trial court order refusing to transfer his case to juvenile court. In support of his arguments on appeal, a number of organizations and individuals filed an amicus brief in support of the defendant, "primarily devoted to discussing the neurological and psychological development of preadolescents and the juvenile justice system as a rehabilitative social institution." The court indicated that it found the brief "informative and enlightening." But, as noted, it refused to consider it because the information contained in the brief had not been presented to the trial court.

While ordinarily it is well established that an appellate court will not consider factual information not presented to the trial court and contained in the official trial court record, a primary purpose of an amicus brief, as Alito observed in Neonatology Associates, is to offer particular expertise and present factual information to the appellate court that it otherwise might not have before it.

Thus, the Superior Court’s reluctance to consider the "informative and enlightening" amicus brief of five respected organizations and three professors in Brown is somewhat odd. Making the court's decision even odder is its citation a few pages later to a law review article as support for its reasoning in reversing the trial court. Stranger yet, the author of the law review article was one of the professors whose amicus brief the court refused to consider.

Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing [email protected].

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Good Secondary Authority and Bad Secondary Authority

By Bruce P. Merenstein
Special to the Legal

U.S. Supreme Court Justice Antonin Scalia's antipathy toward the use of legislative history as a tool for interpreting a statute is well known and much debated. Good arguments can be made for both sides of this debate.

As Scalia explained in his dissenting opinion in Koons Buick Pontiac GMC Inc. v. Nigh, "the court's use of legislative history … lends itself to a kind of ventriloquism. The Congressional Record or committee reports are used to make words appear to come from Congress's mouth which were spoken or written by others (individual Members of Congress, congressional aides, or even enterprising lobbyists)." Former Justice John Paul Stevens, speaking for the opposite view in Koons, argued, "It is always appropriate to consider all available evidence of Congress' true intent when interpreting its work product."

A recent opinion by Scalia reveals an interesting quirk in his die-hard opposition to consideration of legislative history in interpreting a statute. In Bruesewitz v. Wyeth LLC, the court had to determine whether a federal statute barred state law design-defect claims against vaccine manufacturers. Scalia's opinion for a 6-2 majority did not rely on legislative history expressly, but the dissent by Justice Sonia Sotomayor did, and Scalia responded to this reliance by commenting, "Even those of us who believe legislative history is a legitimate tool of statutory interpretation have no need to resort to it."

Yet, while eschewing reliance on legislative history, Scalia's majority opinion cited no fewer than nine journal articles, books or agency reports to explain the history of vaccines and vaccine-related litigation that led to enactment of the National Childhood Vaccine Injury Act (NCVIA) of 1986. Of course, these secondary authorities are not part of the act, and their words do not "come from Congress's mouth," as Scalia put it in Koons.

But Scalia had no trouble invoking them to explain such background facts as the pre-act regulation of vaccines and compensation for vaccine-related injuries; the increase in tort litigation related to concerns with the diphtheria, tetanus and pertussis (DTP) vaccine and the resulting destabilization of the DTP vaccine market; and a decline in the DTP vaccination rates and a concomitant concern by public health officials over a potential outbreak of previously controlled diseases. After invoking the numerous secondary authorities in support of these contentions, Scalia explained, "To stabilize the vaccine market and facilitate compensation, Congress enacted the NCVIA in 1986."

It is possible that Scalia relied on these secondary sources solely for background information, to enlighten the reader or clarify the context of the court’s decision, but this does not appear to be the case. Rather, as Scalia's segue from the background to the discussion of the NCVIA demonstrates, the background was included to explain that the purpose of the NCVIA was to address the destabilization of the vaccine market and the difficulty in obtaining compensation for vaccine-related injuries.

This purpose, expressed not in a provision of the statute, but rather in a number of secondary sources, then informed the court's ultimate determination -- ostensibly made on the basis of the statute's text and structure, and the structure of vaccine regulation generally -- that state law design-defect claims are pre-empted by the statute.

It is commonplace, of course, for judges to rely on secondary authorities in their opinions. What makes Scalia's extensive use of such authorities in his Bruesewitz opinion so striking is his oft-expressed aversion to another type of secondary authority -- legislative history. It would seem that, so long as the latter category is given its proper weight, i.e., as persuasive, non-dispositive secondary authority, it should be considered equally with the other categories of secondary authority that Scalia relied on in Bruesewitz.

Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing [email protected].
This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

The Hearsay Trojan Horse: Out-of-Court Statements Offered to Demonstrate a 'Course Of Conduct'

By Bruce P. Merenstein
Special to the Legal

Trial lawyers know that when they want to introduce an out-of-court statement and no obvious exception to the rule against hearsay applies, they always have a fallback position: contend that the statement is not sought to be admitted to prove the truth of the matter asserted. If this argument is successful, the statement will be admitted and the jury will hear it (and possibly even believe it is true), accomplishing much of the trial lawyer's goal in offering the statement in the first place.

But in the real world of jury trials, what does it mean to admit a statement for some other purpose than to demonstrate that the facts asserted in the statement are true?

Consider a recent Pennsylvania Superior Court decision, Commonwealth v. Estepp, involving a conviction for drug possession. On appeal, the defendant contended that the trial court improperly allowed a police officer to testify at trial that a confidential informant had told the police "that a 50-year-old white male named 'Vern' sold prescription drugs out of his residence on 2828 Agate Street." The defendant happened to be a 50-year-old white male whose first name was Vernon and who was arrested at 2828 Agate Street. What possible purpose could there have been for allowing the police officer to offer testimony about an out-of-court statement that directly implicated the defendant, other than to bolster the prosecution’s case against the defendant?

According to the commonwealth, the purpose was solely to explain the officer's "course of conduct." Relying on longstanding Pennsylvania precedent, the Superior Court agreed that this was a proper purpose, holding that the trial court’s cautionary instruction to the jury that the testimony was being admitted only "to help explain why he did what he did" was sufficient to ensure that the out-of-court statement would not be considered for its truth.

Yet, the police officer must have believed the out-of-court statement was true, for if he did not, he would not have pursued his "course of conduct" in reliance on the statement. Moreover, the point of informing the jury of the facts that led the officer to take the steps he did was to make the final step in the course of conduct -- the arrest of the defendant -- appear reasonable. If, for example, the officer arrested the defendant because of a dream he had in which the defendant was selling drugs at 2828 Agate Street, the commonwealth undoubtedly would not elicit this testimony from the police officer.

So, in the end, the jury plainly understood that both the commonwealth and the police officer (and perhaps even the trial court) believed that the out-of-court statement was true, for, if it were not, the officer would not have undertaken a course of conduct in reliance on it and the commonwealth would not have asked the officer about it.

Of course, even if an out-of-court statement is admissible because it (purportedly) is not being offered for the truth of its contents, a trial court has the discretion to exclude it under Rule 403, if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

In reality, however, a court willing to invoke the "course of conduct" excuse for admitting blatant hearsay is unlikely to turn around and exclude the same evidence because of its prejudicial or misleading nature.

Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing [email protected].
This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

In Search of Fairminded Jurists

By Bruce Merenstein
Special to the Legal

Many principles of law revolve around the concept of a “reasonable person.” Of course, negligence law often applies a “reasonable person” standard to determine whether a defendant breached a duty owed to a plaintiff. Similarly, in determining whether summary judgment or judgment notwithstanding the verdict should be entered for a defendant, courts typically ask whether the evidence is sufficient for a reasonable jury to return a verdict in favor of the plaintiff.

In some circumstances, however, the focus is not on the reasonable person or a reasonable jury, but on a reasonable jurist.  In those situations, courts must engage in the strange task of determining whether fellow judges have reached a decision that no reasonable judge could reach.

A recent U.S. Supreme Court decision makes this issue stark. In Harrington v. Richter, the court reversed a decision of the 9th U.S. Circuit court of Appeals granting the writ of habeas corpus to a California inmate. Under 1996 amendments to the federal habeas statute, the circumstances under which federal courts may grant the writ of habeas corpus are severely restricted. In general, a state inmate cannot be granted the writ unless the state court decision rejecting the inmate’s claims was contrary to -- or an unreasonable application of -- clearly established federal law, or was based on an unreasonable determination of the facts.

In its en banc opinion in Harrington, the 9th Circuit held the California courts’ analysis (and rejection) of an inmate’s ineffective assistance of counsel claim constituted an unreasonable application of clearly established federal law. After granting the state’s certiorari petition, the Supreme Court unanimously held that the 9th Circuit had erred. The majority opinion by Justice Anthony M. Kennedy (joined by all participating justices except Justice Ruth Bader Ginsburg, who wrote a one-paragraph opinion concurring in the judgment) explained that the 9th Circuit had “an improper understanding of [the habeas statute’s] unreasonableness standard.”

Quoting an earlier Supreme Court decision (Yarborough v. Alvarado), Kennedy explained that a state court ruling is not unreasonable “so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Kennedy repeated this formulation many times. For example, he emphasized that a federal court may only grant the writ of habeas corpus “in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents.” And he noted that a habeas petitioner, in order to obtain relief, must demonstrate that a state court ruling “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”

Taken at face value, then, the court would appear to have held that a habeas petition must be denied if a single “fairminded” or “reasonable” jurist agrees with a state court rejection of a habeas petitioner’s claim. So, if a federal trial judge (or magistrate judge) rejects a habeas petition, the court of appeals must affirm unless it concludes that the trial or magistrate judge is not “fairminded” or “reasonable.” And if a court of appeals panel is split on the issue of relief for a habeas petitioner, with two judges voting for relief and one against, the two judges in the majority must accede to their dissenting colleague, unless they are willing to label him or her not fairminded or unreasonable.

Finally, if a habeas case reaches the Supreme Court, Harrington would appear to require that the court reject the petition unless it unanimously finds that the state court’s application of federal law is unreasonable. If, on the other hand, a divided court finds that habeas relief is warranted, the dissenting justices will be deemed not fairminded, since Harrington says any disagreement among fairminded jurists calls for denial of relief.

Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing [email protected].

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

PA Supreme Court Requires Litigants to Raise Futile Arguments

By Bruce Merenstein
Special to the Legal

It is axiomatic that state trial courts are bound by precedential opinions of intermediate appellate courts and state supreme courts within their jurisdiction. But precedents change. Despite the force of stare decisis, courts frequently revisit prior rulings and either overrule or substantially modify established legal doctrines. It is equally well-established in Pennsylvania (as in most jurisdictions) that, as set forth in the appellate rules, “issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Thus, lawyers often face the dilemma of whether they should make arguments in a trial court that are foreclosed by precedent of a higher court.

In a recent decision, Schmidt v. Boardman Co., the Supreme Court clarified that in such circumstances, a litigant must raise the futile argument in the trial court (and presumably in the intermediate appellate court) in order to preserve it for later review by the court that has the authority to revisit its prior rulings.

In Schmidt, the trial court held that a corporation could be liable for injuries suffered as a result of an allegedly defective product made by a predecessor corporation under the so-called product-line exception to the general rule of successor non-liability. The trial court instructed the jury on the exception and, following a verdict for the plaintiffs, entered judgment and denied all of the defendant’s challenges to the verdict.

In the trial court — and on appeal to the Superior Court — the defendant never argued that Pennsylvania should reject the product-line exception in its entirety; rather, it simply mounted a number of challenges to the trial court’s jury instructions and the sufficiency of the evidence supporting the exception.

Before the Supreme Court, however, the defendant argued “the product-line exception to the established rule of successor non-liability [is] inconsistent with the rationale underlying strict products liability,” and should be rejected outright. The defendant contended that it failed to raise this broad challenge to the exception earlier because such a challenge was foreclosed by Superior Court precedent, which had adopted the product-line exception. But the defendant argued that, now that it was before the highest state court, which was not bound by Superior Court precedent, it should be free to raise the issue that it would have been fruitless to raise earlier. The Supreme Court disagreed.

The court initially recognized “that there are good reasons supporting an approach that does not require useless objections, and many courts have ascribed to such practice.” But the court held that the countervailing rationale for requiring parties to raise arguments in lower courts, even when those arguments are foreclosed by controlling precedent, was stronger.

As the court explained, the burden on courts of entertaining objections that are plainly meritless was slight, “particularly where the litigant acknowledges the binding nature of the prevailing precedent but merely indicates that it wishes to preserve a challenge for review on later appeal.” By contrast, “the salutary effect of narrowing the scope of appeals from an earlier stage of litigation is to put the court and all parties on appropriate notice and to facilitate informed decision making.”

Importantly, the court distinguished situations where a party fails to raise an issue in the trial court, but the law changes during the pendency of a case. In those situations, a litigant may not be foreclosed from relying on the new precedent, even if it had failed to raise the issue because of its “good faith reliance on the existing state of the law” during the trial proceedings.

The lesson from Schmidt is that lawyers seeking to avoid waiver problems on appeal should raise any and all arguments in the trial court that (to borrow a phrase from Pa.R.Civ.P. 1023.1), “are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law.”

Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing [email protected].

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.