Spring 2014, Vol. 22 No. 3 TABLE OF CONTENTS _________________________________________________________________________________________________________

Articles » Lost in Case: 10 Ways to Bring Justice into a Closing Argument By Jennifer Zedalis

Tips to help you craft a compelling closing argument and secure a fair outcome for your client. The Demise of the "Meeting of the Minds" in Contract Law By Ralph H. Schofield Jr.

We explore how the "objective" view of this elusive concept continues to develop and how it can affect other contract defenses. Supreme Court Decisions Both Relax and Raise Standards in Patent Litigation By Jeffrey K. Dicker

The relaxed standard for determining whether a case is exceptional, coupled with the more deferential standard of appellate review, has the potential to change the landscape. Lincoln's Last Murder Trial: People v. Harrison By Travis H.D. Lewin

Lessons to learn from the trial Lincoln could not win but dared not lose. News & Developments » FRE 2014 Amendments: Clarifying Certain Hearsay Exceptions Barring action from Congress, the FRE amendments will become effective on December 1, 2014. Are Exceptions to the Hearsay Rule Outdated? Seventh Circuit questions validity of the present sense impression and excited utterance exceptions.

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ARTICLES

Lost in Case: 10 Ways to Bring Justice into a Closing Argument By Jennifer Zedalis

Jurors have a difficult job. It is challenging to decide a case when there is compelling evidence on both sides. It is challenging to sit through days of testimony or to consider verdict forms that offer more than two options. In civil trials, jurors may have to make decisions apportioning fault or determining different types of damages. They may have to consider opinions from competing experts on critical issues. There are often lesser included offenses or affirmative defenses to consider in criminal cases. In cases where one side appears to have the winning facts, jurors still need and expect to hear persuasive arguments. Jurors often face pressures from many sources. They are taken away from their own jobs and daily routines to decide fault, liability, damages, guilt, penalties, and sometimes even life or death. In any case, closing arguments should bring out the best in lawyers in terms of skill and purpose. In the courtroom, closing argument is the only opportunity for litigants to have their counsel summarize the proof and argue the merits of their cases based on the law. This opportunity is so important that the U.S. Supreme Court has noted its Sixth Amendment implications even in non-jury trials. See Herring v. New York, 422 U.S. 853, 862 (1975). If a client is up against strong odds, lawyers must work even harder to make sure the trial is fair and to ensure everything has been done that can be done for the client in the courtroom. To be a true advocate, a lawyer must bring justice into closing argument. What is a justice-worthy closing argument? What does a lawyer do to present one? 1. Communicate Cases never unfold at trial exactly as they are planned at the office. Closing argument should be intimately connected to the words, exhibits, and issues actually presented in the courtroom. Reading is passive and non-communicative, so notes should be left on the podium. Laptops and tablets should be left at counsel table. Any notes on the podium should be for back-up purposes only, and should be in the form of bullet points, buzzwords, or large-print quotes that can be seen with a quick glance. Lawyers who read prepared speeches are not persuasive because they fail to convey a sense that they really know the case. Unless it is not permitted by the judge, a lawyer should step out from behind the podium because the podium is a barrier. It is best to stand in front of the jurors, at a polite distance, and speak directly to them. Lawyers should speak in a way that will make jurors eager to listen. They should share the case with the jurors rather than throwing it at them or presenting a lecture. They should be genuine and use common language.

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Words can be used to help the jurors or to frustrate them. Jurors will appreciate the lawyer who helps. Common, simple words and phrases bring understanding. Legal terms and other complex jargon frustrate jurors and make them work harder to understand the case. For example, it is ineffective to argue, “We have presented substantial evidence in the form of eyewitness testimony, with corroboration from forensic testing.” It is better to argue, “We have heard from the two people who were actually inside that car when the shots were fired, ladies and gentlemen. The fingerprints on the door handle and the personal items found along the road tell us the same story because they belong to the defendant.” Don’t argue, “We submit to you that we have proven by a preponderance of the evidence the defendant is responsible for the collision that led to Mrs. Smith’s life-threatening injuries.” Rather, argue, “When his eyes should have been on the road and on Mrs. Smith’s bicycle, the defendant was reading a text message. That’s why he drove right into her, and that’s why she now has no feeling on her left side.” Lawyers who use legal terms and unfamiliar words in closing argument are not as persuasive as those who stay in the heart of the case, with storyfriendly words and phrases. 2. Edit Think about what needs to be said at the end of the case. Lawyers are not court reporters. It is not helpful or interesting to rehash testimony as if reading a transcript. Think about what the jurors have seen, heard, and experienced during the trial. They have already heard the facts, including anything exposed or conceded during cross-examination. In closing, the facts should be used to support arguments in a thoughtful and credible way. Organize the argument in a logical fashion. What issues must the jurors decide and what is the conflicting evidence on those issues? What questions do the jurors have that need to be answered in the closing? What should be deemphasized or left out? What is the best way to respond to or anticipate the arguments of the other side? If you are defending the case, make sure to respond to the plaintiff’s or prosecutor’s argument in addition to making your own points. If you have the opportunity for rebuttal, be specific. Don’t just rehash your closing argument—the jurors have already heard it. Rather, focus on any points scored by your opponent that you can negate or diminish. In most cases, there are three general ways of approaching your opponent’s argument: competing facts, a credibility gap, or a burden that works in your client’s favor. Decide what is most helpful, and highlight it. 3. Emphasize the “We Gotcha” Facts for the Client Consider arguing in the present tense. For example, “He’s running. Robert Jones sees him running. Bill Smith sees him running. The parking lot attendant sees him running. And as he’s running, he falls. He’s shot in the back. All of the shots are to the back. He’s lying there, shot _________________________________________________________________________________________________________

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three times in the back, with nothing in his own hands but his car keys. He’s not a threat to anyone.” Keep the case fresh. Avoid circling around and repeating the entire argument. Rather, without overdoing it, repeat key points or themes that tie your case together. Powerful quotes from witnesses or admissions are compelling. Another way of highlighting strong facts is to deemphasize weaker ones or turn would-be concessions into positives. For example, don’t argue, “It’s true that Dr. Jones wasn’t in to see Mr. Smith on the 6th, but he did call and speak with the duty nurse that evening.” Rather, argue, “Dr. Jones wasn’t on call on the weekend of the 6th, but even on his day off, he phoned in to get an update on Mr. Smith.” 4. Find a Theme in the Case and Use It Be compelling. Remember that themes are essentially universal, and easily understood and even adopted by jurors. This is not the time to be too clever or esoteric. Be aware and reactive rather than inventive. Themes should be drawn naturally from the story lines in the case. What connects the facts in terms of emotional understanding? Fear? Rage? Jealousy? Greed? Honor? Vulnerability? Fairness? Courage? Hope? Youth (and all its pitfalls)? Many cases have very simple thematic lines that jurors understand immediately. Jurors love honest themes. If your opponent is a large corporation, think about the way jurors might view power when one side has it and the other does not. Here are some examples: How simple would it have been to make this machine safe? How simple would it have been for this police officer to wait for backup, or to verify the information he had, before using deadly force? How simple would it have been for this company to recall the car seat? On the other hand, even a powerful litigant has the right to expect a fair verdict. Consumers are expected to use their own intelligence and good judgment when using products. Fairness, trust, and common sense are implicit themes in many types of cases. In contract cases, principles of integrity and fair dealing may underlie the dispute. Business owners must be able to rely on agreements to operate successfully in the marketplace. On the other end, business owners who put profits above safety cause harm. 5. Argue the Merits Don’t reopen the case. Don’t be tempted to turn the case into an all-or-nothing contest when the governing law is more flexible. Instead, be prepared to explain why your client has a stronger case or why the opponent has failed to prove his or her case. Closing is the time to focus on credibility, consistency or inconsistency, and common sense. Arguments should be supported with evidence but not exaggerated. For example, jurors may not like a particular witness but still find the witness’s testimony believable. They may find it very likely that the defendant has committed a crime but still be persuaded that the proof is not strong _________________________________________________________________________________________________________

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enough for a verdict of guilt. They may find that a terrible injury has occurred but come to understand that causation has not been proven. Lawyers who acknowledge these nuances in their arguments empower the jurors and offer them an opportunity to decide the case without praising or condemning one party over the other. Lawyers who exaggerate the case put pressure on jurors to see “in black and white,” and this is often impossible. 6. Make the Case Visual Whenever Possible Use the evidence. Bring exhibits up to the podium. It is distracting to walk back and forth to the clerk’s station or counsel table during closing. If using a PowerPoint presentation, have it ready, and make sure there is not too much information on each slide. Technology has wonderful application in trials, but it sometimes gets in the way of effective communication. Timelines and other visual aids should be easy to read and easy to understand. 7. Remember the Burden of Proof Cover the elements of the charges or claims in the case. Prosecutors should consider whether to devote time to lesser included offenses, based on strategy and facts presented during the trial. Some cases call for an all-or-nothing approach, and some do not. For the party with the burden, it is helpful to invite the jurors to use their common sense and experience when deciding what has been proven. If your client has no burden of proof, don’t assume one. Instead, focus on lack of proof, weaknesses in proof, and credibility problems in the opponent’s case. However, to the extent that you have presented evidence to support a defense, your arguments must also be credible and reasonable. Make arguments that will support a universal theme. Avoid trying to explain away every piece of the opponent’s case because this usually results in a loss of credibility. Remember that less is often more when your opponent has the burden. 8. Avoid Long Recitations of Jury Instructions. At best, most jury instructions are tedious; at worst, they are incomprehensible and boring. So don’t recite them. The better approach is to reference key portions of the law or applicable legal concepts accurately while arguing your case. Select the concepts that relate to the key facts or controversies in the case, and discuss them in context. For example, reading text messages while driving is not “reasonable care.” The time that it takes to pull a gun out of a backpack, aim it, and pull the trigger is more than enough time for “conscious reflection.” If there is a need to go over the verdict form, make it meaningful and not merely a rhetorical exercise. It is not persuasive to simply show jurors how you want them to mark the form. However, it may be very effective to refer to the verdict form when summarizing important proof in the trial or relating damages to dollar figures. Rather than argue, “This is how you should mark the form,” think about arguing, “This is why you should check the box that says you find negligence on the part of the defendant,” and remind jurors of the testimony or other evidence supporting that finding. _________________________________________________________________________________________________________

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9. Make a Fair and Professional Argument Verdicts in serious civil and criminal cases are sometimes reversed based on improper argument. Lawyers risk their cases as well as their professional reputations by making improper closing arguments. If your opponent is presenting an improper argument, make sure you preserve your client’s right to a fair trial with objections and motions for mistrial. Lawyers who remain silent in the face of improper arguments fail to protect their clients’ rights to due process and a fair trial. See Baldwin v. Adams, 899 F. Supp. 2d 889, 905–920 (N.D. Cal. 2012), for a detailed discussion of improper arguments in criminal trials as well as an analysis of ineffective assistance of counsel claims based on failure to make objections. Closings should focus on the facts presented at trial, reasonable inferences drawn from those facts, and accurate legal principles. Lawyers who attack opposing counsel or infect the decisionmaking process with factors outside the evidence and law are out-of-bounds. Name-calling is extremely unprofessional, and it violates Rule 3.4 of the ABA Model Rules of Professional Conduct as well as the attorney oath of many state bar associations. Lawyers are “public citizens having a special responsibility for the quality of justice.” ABA Model Rules of Prof’l Conduct pmbl. § 1. Trying the character of the litigants or opposing counsel instead of the facts of the case is unprofessional and objectionable. Lawyers are not permitted to argue about opposing counsel instead of the facts. Arguments about witness credibility must be based on evidence presented to the jury. Cecil v. Gibson, 346 N.E.2d 448, 449–450 (Ill. App. Ct. 1976). Lawyers have a responsibility to listen to opposing counsel and make timely objections to impermissible arguments. All lawyers have a responsibility to understand where the line is drawn between fair, permissible argument and unfair, objectionable argument, and they must avoid the latter. These include flag-waving arguments, arguments vouching for the merits of the case or the witnesses (personal opinion), arguments including facts that were not introduced into evidence, and arguments that inflame the passions of the jurors or encourage them to decide the case subjectively (golden rule). Why risk reversal with “golden rule” violations when the facts alone are often powerful enough to generate honest emotion? 10. Find Courage Respect your role as well as the roles of everyone else in the courtroom. Jurors respect lawyers who have courage, and they pay attention to lawyers who show courage, even when the facts favor the other party. A lawyer should be a sincere advocate, and not an actor or a salesperson. The trial is not about you. Don’t insult the jurors by attempting to ingratiate yourself, and don’t be condescending. Don’t infect your argument with “junk manners” by making long speeches about how thankful you and your client are, or how much you appreciate the careful attention jurors have given the _________________________________________________________________________________________________________

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case. Rather, demonstrate genuine courtesy by using the jurors’ time wisely. Make the best arguments you can to support your client’s case. Don’t act as if you would rather be somewhere else, no matter how difficult your client’s case is. Lawyers are never truly tested until they have had to argue a tough case. We all become part of the history of our profession, and we all share that iconic image of the lawyer standing before the jury and doing the absolute best he or she can to argue and persuade. Closing arguments should be grounded in the desire to seek justice, whether the client prevails or not. Sincerity, and not perfection, is called for. If they are justice-worthy, closing arguments can be among the most rewarding aspects of practicing law. Keywords: litigation, trial evidence, closing argument, justice, theme, visual, communication Jennifer Zedalis is the director of trial practice and the senior legal skills professor at the Levin College of Law at the University of Florida in Gainesville.

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The Demise of the “Meeting of the Minds” in Contract Law By Ralph H. Schofield Jr.

It remains commonplace to hear parties argue over whether a “meeting of the minds” occurred during contract negotiations. This concept remains misunderstood by many. Surely, by its terms, it should mean that the two parties, in fact, thought the same thing and reached an agreement on the same thing. In what other way could two minds meet? But this illusory concept has never been the true requirement for contract formation, and attempts to import subjective understanding into contract law have largely been unsuccessful. As one Florida appellate court stated in 2013, there is no consideration of the “mind” when it comes to determining whether there was a “meeting of the minds,” even when the party seeking to avoid the contract “could not possibly have understood” it. Spring Lake NC, LLC v. Holloway, 110 So. 3d 916, 917 (Fla. Dist. Ct. App. 2013). With a review of that and other case law, this article explores how the “objective” view of the “meeting of the minds” continues to develop and can affect other contract defenses, such as mental incapacity and unconscionability. Development of the Objective/Subjective Dynamic The “meeting of the minds” concept is older than our country, but, even today, we find disagreement as to what it means. One reason for this disagreement may be the use of the phrase “meeting of the minds” as an element of a conspiracy, where courts often describe the requirement that the defendants had a “unity of purpose” or “common design and understanding” or both. See, e.g., Pagtakhan v. Doe, No. C 08-2188 SI (pr), 2013 U.S. Dist. LEXIS 84852, at *12, 2013 WL 3052865 (N.D. Cal. June 17, 2013) (“A civil conspiracy is a combination of . . . persons who . . . intend to accomplish some unlawful objective for the purpose of harming another. . . . To prove a civil conspiracy, the plaintiff must show that the conspiring parties reached a unity of purpose or common design and understanding, or a meeting of the minds in an unlawful agreement.”). Historically, courts in contract cases have applied a much more objective standard to determine whether a “meeting of the minds” occurred. Before 1800, the review of a contract was objective. The approach was tantamount to strict construction, requiring the enforcement of the contract based only on the meaning of the individual words used with no further investigation, interpretation, or inference permitted. In his article “The Origins of the Objective Theory of Contract Formation and Interpretation,” 69Fordham L. Rev. 427 (2000), Professor Joseph Perillo explains the various forms of textualism that we have seen throughout history in the interpretation of contracts. Professor Perillo does not indicate how, if at all, the courts dealt with strict construction’s tendency to lead to absurd outcomes. He does, however, reference two late 1700s Maryland cases—one in which a deed was void because it used the words “this indenture” but the paper was not, in fact, indented, see id. at 442 n.95 (citing Paca’s Lessee v. Forwood, 2 H. & McH. 175, 179–81 (Md. 1787)), and another in which the appellant’s attorney succeeded by making the point that “[a]bsurdity is no argument against [a rule] if it is the law, nor its inconvenience” and that the courts lacked the authority to rectify absurdities, see id. at 442 (quoting Beane v. Middleton, 4 H. & McH. 74, 78 _________________________________________________________________________________________________________

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(Md. 1797) (emphasis in original)). The courts opted for form over substance and refused to look beyond dictionary-dictated intrinsic meanings, even when the result was obviously far afield from reasonableness or actual intent. A statute of frauds and parol evidence rule supported this objective approach on even the most informal agreements. If such an approach were followed today, the evidence that one might introduce in a contract interpretation case would be quite limited. One could introduce the instrument itself and, perhaps, expert testimony (or a dictionary) to determine the intrinsic meaning of words. There would be no testimony as to intent and no argument as to interpretations or inferences based on context. Strict construction might be the appropriate approach if we lived in a society where language was so formal, standardized, and known that every contracting party would use precisely the same words to describe an agreement. After all, it is difficult, if not impossible, to prove the intent in one’s mind or heart (and, of course, it is easy to lie about it). See Christopher Saint Germain, Doctor & Student (James Moore, 45, College-Green 1792), 179 (“[I]t is secret in his own confidence whether he intended for to be bound or nay. And of the intent inward in the heart, man’s law cannot judge, and that is one of the causes why the law of God is necessary, (that is to say) to judge inward things.”).While one may expect that language was more formal and standardized in times past and that contracting parties might have typically been sophisticated and knowledgeable about the language, there can be little doubt that today the sophistication of parties and the language used in any agreement vary wildly. Employing strict construction without analysis of, at least, context might lead to more problems than solutions. In the 1800s, American courts began to move away from opinions issued by the King’s Bench, where words were given intrinsic meaning and only intrinsic meaning, even when the contrary intention of the parties was, in fact, actual or deducible. See, e.g., Throckmerton v. Tracy, (1816) 75 Eng. Rep. 222, 251 (K.B.). In his1844 treatise, William W. Story indicated that courts should give effect to the intention of parties, even if not fully expressed and even if contradictory to the plain language of the agreement, provided that the intent is mutually understood and legal. See W.W. Story, A Treatise on the Law of Contracts Not under Seal s. 231, at 149 (1844). An anti-textualist (and a party who is looking for factual issues to defeat summary judgment or confuse the fact finder) would have a field day if Story’s treatise were applied as written. Surely, such an approach means that parties can introduce evidence of their communications (with each other and with third parties), testimony as to what was going through each of their minds, and perhaps even life experiences that might influence a party’s understanding or use of language. In reality, however, the reach to find the intention of the parties still remained within the four corners of the document. The parol evidence rule was alive and well, prohibiting a court from finding evidence of intention from anywhere other than the instrument. As explained by the Massachusetts Supreme Judicial Court in 1898, the look to the “intent” of the parties meant looking to the general language, “scheme,” and “habit” of the instrument itself to explain the plain meaning of the individual words. See Smith v. Abington Sav. Bank, 50 N.E. 545, 546 _________________________________________________________________________________________________________

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(Mass. 1898). So, while this shift away from strict construction opened the door to further argument about meaning, interpretation, and inferences that could be drawn from the language, the evidence to be presented was still limited to the instrument itself. Policy Considerations and the Current Rule As contract law has developed to what it is today, we have seen courts struggle with competing policies. Courts strive to give effect to the intent of all of the parties to the contract, but courts do not want to prejudice an innocent party because of the unknown intent of the other party. Intent is, of course, quite difficult to prove and quite easy to lie about (or to keep silent about until the lawsuit arises). Courts want to give effect to the reasonable expectations of the innocent contracting parties but do not want what is within the four corners of the contract to be meaningless. If you have any textualism in your blood, you would despise the idea of converting from form-over-intention to an extreme version of intention-over-form, at which point a written contract becomes only evidence of agreement rather than an agreement itself. It seems a noble task to attempt to give effect to the intent of all of the parties to a contract. No one wants to think he is renting a single movie when he is really signing on for monthly withdrawals from his bank account for a movie service. If he has the intent of a single rental and the other party knows it, should not the court give effect to that intent? Otherwise, the other party would be taking advantage of the confused party. Of course, that is why we have the defense of unilateral mistake, which allows a mistaken party to void a contract based on certain mistakes where the other party caused or knew of the mistake (or where the mistake makes the contract unconscionable). See Restatement (Second) of Contracts § 153. If both parties have the same intent, but that intent is contrary to the plain language of the contract, should not the court give effect to the shared intent? Otherwise, despite an obvioussubjective “meeting of the minds,” both parties will receive something different than that for which they bargained. Of course, that is why we have the defense of mutual mistake and the remedy of reformation. The defense of mutual mistake allows the adversely affected party to void a contract based on certain mistakes. The remedy of reformation allows the court to rewrite the contract to memorialize what the parties actually understood the agreement to be. See id. at § 152. If a party was forced into signing something he or she did not intend or was prevented from reading the contract, should not the court prevent that victim from being bound to the contract? Of course, that is why we have coercion and duress defenses. See Liberty Mut. Ins. Co. v. Mueller, 432 F. Supp. 325, 327 (W.D. Va. 1977) (“[B]asic contract law requires that . . . knowledge [of the terms of a contract] be imputed to [a party] unless there is evidence that he was prevented from reading . . . by the use of fraud or coercion.”). If a party does not fully comprehend what he or she is signing, should not the court protect that individual as well? Of course, that is why we have an incapacity defense. See Macaulay v. Wachovia Bank of S.C., N.A., 569 S.E.2d 371, 375 (S.C. Ct. App. 2002) (requiring the party to have “the mental capacity _________________________________________________________________________________________________________

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to understand or comprehend the subject of the contract, its nature, and its probable consequences”). Assuming these defenses are not proven, what is left of the “meeting of the minds” concept? That is, how could one prove that there was no “meeting of the minds” if there were no incapacity, coercion, duress, or remediable mistake? It is perhaps due to the use of these defenses that the subjective concept of a “meeting of the minds” has not been successful and, in fact, not been necessary. By the 1870s, efforts for such a subjective test appeared to cease, as discussed by the Court of Appeals of New York in Dillon v. Anderson: The defendant being a witness on his own behalf, was asked by his counsel: “Did you intend to make an individual contract?” which question was overruled by the court. It called for his purpose mentally formed, but undisclosed, to the plaintiff. It sought to annul, by an intention not expressed, words and acts relied upon by the plaintiff, by which he was influenced, and which of themselves were prima facie evidence of an agreement. An agreement is said to be the meeting of minds of the parties. But minds cannot meet when one keeps to itself what it means to do, nor can one party know that the other does not assent to a contract, the terms of which have been discussed and settled between them, unless dissent is made known. . . . Here was the written contract signed and delivered without qualification of the act of delivery, without the expression of the intention called for by the question that the act of delivery was not to be taken as meaning all it seemed to mean. The testimony called for was not proper. . . . [T]hat an act should be held to have or not to have effect, and one party to it, to be bound or not as the other party to it should, by his undisclosed purpose, have determined, is warranted by no sound principle. 43 N.Y. 231, 236–37 (1870). No true subjective test existed (or, at least, was successful) to assess what was in the minds of the contracting parties. Dillon develops the truer test of the formation of a contract by seeking mutuality of assent or, in other words, by seeking to show that the parties manifested external signs that they agreed to a proposal rather than that the parties internally understood or agreed to a particular proposal. For purposes of proving mutuality of assent, one could look to the existence of signatures, handshakes, words spoken, or even the course of dealing of the parties or the common practices in a particular industry. The Harsh Reality of Objectivity—Spring Lake NC, LLC v. Holloway In February 2013, an appellate court in central Florida reviewed and reversed a trial court’s ruling and enforced an admittedly complex contract against an admittedly confused entrant into a rehabilitation center. In doing so, the court put into question the status of the “meeting of the minds” concept and the various defenses discussed above. _________________________________________________________________________________________________________

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In Spring Lake NC, LLC v. Holloway, a 92-year-old woman with a fourth-grade education became a resident at a facility that provides physical, occupational, and speech therapy. 110 So. 3d at 917. The woman signed, among other things, an arbitration agreement before becoming a resident. The trial court found (and the appellate court agreed) that the woman “could not spell well and often had to sound out words while reading” and that “[s]he had memory problems and was increasingly confused.” Id. Further, the trial court found “that the contracts were so complex that she could not possibly have understood what she was signing.” Id. When the woman’s estate brought suit against the rehabilitation center for her allegedly wrongful death, and despite the obvious inability of the woman to understand what she was signing, the trial court did not declare the woman incompetent or incapacitated. But, because of her shortcomings, the trial court held that no “meeting of the minds” had occurred. Stopping here, we can see that the trial court appeared to take a subjective approach. If the woman was not successful on her defense of incapacity, but she nonetheless signed the agreement, a decision that there was no “meeting of the minds” appears to hinge on the fact that she did not, subjectively, understand and accept what she was signing. On appeal, the Florida Second District Court of Appeal enforced the arbitration agreement. The court explained that it was following established Florida precedent holding that there is a presumption of competence and that two signatures create a contract absent undue influence (including being prevented from reading the contract). Among precedent relied on by the court was an intermediate court ruling that the fact that the plaintiff was legally blind when she signed an agreement did not make the agreement invalid. See Estate of Etting ex rel. Etting v. Regents Park at Aventura, Inc., 891 So. 2d 558 (Fla. Dist. Ct. App. 2004). In other words, only if you are prevented by the other party from reading the contract can your claim that you did not read the contract (even if you are physically or mentally incapable of doing so) prevail. In so holding, the Spring Lake court took a laissez-faire approach to consent and intent, and rejected the concept that a subjective “meeting of the minds” test could survive in today’s economy: As a practical matter, a significant percentage of the people who enter nursing homes and rehabilitation centers have mental or physical limitations that make it difficult for them to understand the agreements signed at admittance. The agreements are sufficiently complex that many able-bodied adults would not fully understand the agreements. The same is probably true for most of the contracts that we sign for many consumer services and even for the agreements clients sign when they hire attorneys. There was a time when most contracts were individually negotiated and handwritten. In that period, perhaps the law could adequately describe a mutual agreement as a “meeting of the minds” between the parties. But a literal “meeting of the minds,” requiring both _________________________________________________________________________________________________________

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parties to have a comparable, subjective understanding of their agreement is clearly not what the courts intend by the use of this phrase. Our modern economy simply could not function if a “meeting of the minds” required individualized understanding of all aspects of the typical standardized contract that is now signed without any expectation that the terms will actually be negotiated. . . . 110 So. 3d at 918. In the words of Justice Scalia, “the times in which consumer contracts were anything other than adhesive are long past.” AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740,1750 (2011). Regardless of whether you have read or understood the contract, if you signed it, you accepted it. More on Defenses of Incapacity and Unconscionability To the surprise of some, the Spring Lake court harshly enforced an adhesion contract against an individual who could not understand it and, likely, who the other party knew could not understand it. Based on the discussion above, however, this holding does not violate the “meeting of the minds” concept, which simply requires the parties to make external signs of agreement—here, signatures—rather than looking at the subjective intent and understanding of each party. The case instead brings into question the viability of the incapacity and unconscionability defenses. Florida presumes capacity, like many states, and further places a “duty” on all parties “to learn and know the contents of an agreement before signing it [and to make a]ny inquiries . . . concerning the ramifications … before signing.” Onderko v. Advanced Auto Ins., Inc., 477 So. 2d 1026, 1028 (Fla. Dist. Ct. App. 1985). The blind or illiterate man must find someone trustworthy to read the contract to him. The person who lacks the ability to understand the complex terms of a contract must find someone to explain those terms in a way that they make sense to him or her. This requires, of course, for the person to know that he or she does not know what the terms mean, including anticipating any potential contingency and event that might affect his or her responsibilities and benefits under the contract. In other words, perhaps every person who is not an expert on the subject matter of the contract should consult an attorney for each of his or her consumer contracts. While that burden to ask questions and consult an expert may be a harsh and expensive reality for the unsophisticated consumer (and his or her ego), it makes sense given the policy against leaving the other, innocent party guessing as to whether the consumer really understood and agreed to the contract. One issue not addressed in the Spring Lake decision is whether the contract was procedurally unconscionable. If the arbitration agreement was not substantively unconscionable, the Spring Lake court would likely have rejected the unconscionability defense anyway. See SA-PG Sun City Ctr., LLC v. Kennedy, 79 So. 3d 916, 919 (Fla. Dist. Ct. App. 2012) (“This court requires a party asserting the defense of unconscionability to demonstrate both procedural and substantive unconscionability.”). But, had the Court addressed the issue, it stands to reason that Spring Lake allowing the elderly, illiterate woman to enter into the arbitration agreement with Spring Lake’s _________________________________________________________________________________________________________

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actual or constructive knowledge of her inability to read or understand the agreement may have amounted to procedural unconscionability, given the parties’ unequal bargaining power, knowledge, and understanding and, arguably, the absence of meaningful choice. See FLCarrollwood Care Ctr., LLC v. Gordon, 77 So. 3d 162, 165 (Fla. Dist. Ct. App. 2011) (setting forth factors of procedural and substantive unconscionability). At the time of this writing, pending before the Florida Supreme Court is review of Hialeah Automotive, LLC v. Basulto, 22 So. 3d 586 (Fla. Dist. Ct. App. 2009), and the issues on appeal include questions of whether alleged unconscionability or a lack of “meeting of the minds” may preclude the enforcement of an English-language arbitration agreement included in a stack of papers signed by a Spanish-speaking car buyer. Fraud and the Parol Evidence Rule—Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Association Also in 2013, the California Supreme Court decided Riverisland Cold Storage, Inc. v. FresnoMadera Production Credit Association, 291 P.3d 316 (Cal. 2013). In that lender liability case, the plaintiff attempted to introduce evidence that the lender had misrepresented the contents and effect of a modification agreement. Specifically, the lender allegedly misrepresented that the forbearance period was extended by two years instead of three months and that the modification included just two additional parcels of real property instead of eight. Id. at 318. The trial court granted the lender’s motion for summary judgment because the fraud exception to the parol evidence rule does not allow parol evidence at odds with the terms of a written agreement. In overruling nearly 80-year-old California case law, however, the California Supreme Court held that misrepresentations about the contents of the agreement are admissible evidence. Id. In so holding, the court rejected an argument that may shield fraudulent conduct and held, succinctly, “When fraud is proven, it cannot be maintained that the parties freely entered into an agreement reflecting a meeting of the minds.” Id. at 324. An attempt to reconcile Riverisland and Spring Lake may lead one to the odd conclusion that you can take advantage of an incompetent person as long as you do not do so fraudulently. At least in California, however, courts appear to continue to require that parties, in fact, have “the capacity of reading and understanding” to bind themselves to contracts. Series AGI W. Linn of Appian Grp. Investors DE, LLC v. Eves, 217 Cal. App. 4th 156, 162 n.6 (2013). But, more importantly, these cases can be reconciled by noting that, provided the proponent of the contract is innocent (i.e., has not engaged in improper conduct to mislead or to prevent understanding), that party should not be penalized based on the other party’s failure to seek out assistance in understanding the terms of the contract. Conclusion The use of the phrase “meeting of the minds” is, at best, confusing and, at worst, improper. Some use it to mean that the parties meant the same thing. This is not the law. Some use it to mean the same as mutuality of assent, such that the parties objectively expressed agreement. If that is the case, the “mind” does not truly come into the equation. Perhaps, if we are to use this concept at _________________________________________________________________________________________________________

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all, we should use it to mean that there was an opportunity to understand—that is, there was capacity and there was not unconscionability (or improper actions that might constitute unconscionability, such as fraud, duress, or coercion). Once there is an opportunity to understand—even if that requires consulting an attorney or interpreter—the contracting party, as a matter of policy and fairness to the other innocent contracting party, must be bound to the agreement, even if he or she chose not to take advantage of his or her opportunity to understand. As an evidentiary matter, when we speak of “meeting of the minds,” we do not create any new burdens of proof beyond what we would need to show formation (mutuality of assent) or the defenses to enforcement (e.g., incapacity or unconscionability). As a proponent of a contract, you must simply show that the parties did, in fact, show objective signs of acceptance. This can be done by signatures, handshakes, or words actually spoken. You might object to the introduction of evidence relating to subjective understanding and literacy because, under the Spring Lake decision, that evidence is not relevant to contract formation or the “meeting of the minds.” As an opponent of a contract, you have a number of factual issues to explore: that mental incapacity rose to such a level as to prevent understanding of the nature of the agreement (presented through, perhaps, expert medical witnesses); that the proponent of the contract knew of that incapacity; that the proponent of the contract failed to allow the opponent to obtain understanding by having a trustworthy individual read and explain the contract; and that the proponent of the contract took other steps that are unconscionable (e.g., misrepresentations, concealments, coercion, duress). But in no event does it seem to matter that the opponent of the contract actually lacked understanding when there were no objective signs of such a lack of understanding. The Spring Lake court would like to eliminate the use of “meeting of the minds” as an element of formation. It may be best that the phrase be eliminated altogether, but, if it is to remain, we should use it as a way of understanding the defenses of incapacity and unconscionability rather than as an element of formation. Keywords: litigation, trial evidence, contract, meeting of the minds, procedural unconscionability, incapacity, mistake, evidence, parol evidence, testimony Ralph H. Schofield Jr. is a litigation associate at Clark, Campbell, Lancaster & Munson, P.A., in Lakeland, Florida.

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Supreme Court Decisions Both Relax and Raise Standards in Patent Litigation By Jeffrey K. Dicker

Section 285 of the Patent Act provides that “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” In 2005, the U.S. Court of Appeals for the Federal Circuit, which has appellate jurisdiction over all patent-infringement cases, see 28 U.S.C. § 1295, established a standard for determining whether a case is exceptional, which has proven difficult to satisfy. On April 29, 2014, the Supreme Court of the United States issued two decisions relating to the determination of whether a case is exceptional and when the award of attorney fees is appropriate in patent litigation. In general, the decisions relax the standard for determining whether a case is exceptional, while setting a more deferential standard of appellate review for any such determination. The decisions are Octane Fitness, LLC v. Icon Health & Fitness, Inc., No. 12–1184 (Apr. 29, 2014), and Highmark Inc. v. Allcare Health Management System, Inc., No. 12–1163 (Apr. 29, 2014). Octane Fitness, LLC v. Icon Health & Fitness, Inc. In Octane Fitness, LLC v. Icon Health & Fitness, Inc., the Court unanimously rejected the rigid standard that previously governed the determination of whether a case is exceptional and the award of attorney fees under 35 U.S.C. § 285. It replaced that standard with an approach placing the determination squarely within the discretion of the district court trial judge. The Court also reduced the evidentiary burden that a party must carry to prove that a case is exceptional. Icon sued Octane, both manufacturers of exercise equipment, alleging that several Octane products infringed an Icon patent that Icon had never commercialized. Octane prevailed on its motion for summary judgment of noninfringement. Octane Fitness, LLC v. Icon Health & Fitness, Inc., No. 09-319 ADM/SER, 2011 WL 2457914, at *1 (D. Minn. June 17, 2011). Octane then moved for an award of attorney fees, which the district court judge denied. 2011 WL 3900975, at *3–4 (D. Minn. Sept. 6, 2011). In explaining the bases for the denial of the motion for attorney fees, the district court judge stated that Octane failed to show that Icon’s litigation was objectively baseless and that Icon brought the litigation in subjective bad faith. Id. On appeal, the Federal Circuit summarily affirmed the denial of the motion for attorney fees. Icon Health & Fitness, Inc. v. Octane Fitness, LLC, 496 F. App’x 57, 65 (Fed. Cir. 2012). In so doing, the Federal Circuit explicitly declined to revisit the standard that it had established that “[a]bsent misconduct in conduct of the litigation or in securing the patents,” a case is “exceptional” under 35 U.S.C. § 285 and allows for an award of attorney fees “only if both (1) the litigation is brought in subjective bad faith, and (2) the litigation is objectively baseless.”See Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F.3d 1378, 1381 (Fed. Cir. 2005). In its short opinion, the Federal Circuit referred to this standard as the “settled standard for exceptionality.” Icon Health & Fitness, 496 F. App’x at 65.

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On appeal to the Supreme Court, Icon argued for approval of the standard applied by the Federal Circuit, while Octane argued that a more appropriate standard would allow district court judges to determine whether a case is exceptional in their discretion based on the totality of the circumstances. During oral arguments before the Court, Octane argued that the “objectively baseless” standard applied by the Federal Circuit “conflicts with the statutory language, [] violates established canons of statutory construction, and [] deprives district courts of the discretion they need to effectively combat abusive patent litigation practices.” Transcript of Oral Argument at 3. Octane also cited a Lanham Act provision with identical language that has been interpreted to leave such determinations to the discretion of district court judges. Brief for Petitioner at 20–21. It argued that 35 U.S.C. § 285 should be interpreted just as broadly as this Lanham Act provision. In favor of affirmance, Icon argued that the challenged “objectively baseless” standard was only one of four possible standards that the Federal Circuit has applied to determine whether a case is exceptional, and therefore the standard is not as inflexible as Octane represented. Brief for Respondent at 23–24. Icon also argued that the text of the statute, along with the legislative history, strongly indicated that the provision was not intended to leave the determination to the discretion of district court judges. Id. at 24–26. It pointed out that, when Congress codified 35 U.S.C. § 285 in 1952, it replaced a previous fee-shifting provision, 35 U.S.C. § 70, which included language stating that a court “may in its discretion award reasonable attorney’s fees to the prevailing party upon the entry of judgment in any patent case.” Id. Icon argued that the 1952 replacement statute omitted the words “in its discretion” and added the phrase “in exceptional circumstances,” making the determination nondiscretionary. In its decision, the Supreme Court rejected the Federal Circuit’s standard as “overly rigid” because it “superimpose[d] an inflexible framework onto statutory text that is inherently flexible.” Octane Fitness, No. 12-1184, slip op. at 8. The Court noted that the differences between the previous statute, 35 U.S.C. § 70, and the current statute, 35 U.S.C. § 285, “did not substantively alter the meaning of the statute” and therefore did not alter the discretionary nature of the determination. Octane Fitness, No. 12-1184, slip op. at 3. The Court ruled that the standard applied by the Federal Circuit is inconsistent with the statutory text and would render 35 U.S.C. § 285 superfluous in light of generally accepted common-law rules on fee shifting, and because most misconduct that would satisfy the Federal Circuit standard is independently sanctionable. Id. at 1, 8–9, 11. Moreover, the Court noted that a rigid standard has no basis or support within the text of section 285. Id. at 9–10. The Court held that the term “exceptional” in 35 U.S.C. § 285 should be construed according to its ordinary meaning at the time of the enactment of the statute. Id. at 7. Accordingly, district court judges can find a case exceptional under 35 U.S.C. § 285 when the case “stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was _________________________________________________________________________________________________________

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litigated.” Id. at 7–8. The Court made it clear that no precise formula exists and that the determination is to be made as “a case-by-case exercise of [the district court judge’s] discretion, considering the totality of the circumstances.” Id. at 8. The Court also rejected the Federal Circuit’s burden of proof standard that entitlement to attorney fees must be proven by “clear and convincing evidence.” Id. at 11. Because the statute itself did not require any deviation from the “preponderance of the evidence” standard generally applied to patent infringement issues, the Court found no reason to impose a heightened standard. Id. The preponderance of the evidence standard was found to be appropriate, as it “allows both parties to ‘share the risk of error in roughly equal fashion.’” Id. (quoting Herman & MacLean v. Huddleston, 459 U.S. 375, 390 (1983)). Applying this evidentiary standard, the Court reversed and remanded the case for further proceedings consistent with its opinion. Highmark Inc. v. Allcare Health Management System, Inc. In the second decision relating to the award of attorney fees in patent litigation, the Supreme Court addressed the related issue of the standard for appellate review with respect to a determination that a case is exceptional. In Highmark Inc. v. Allcare Health Management System, Inc., the Court held that appellate courts should review such determinations under an “abuse of discretion” standard—a standard that is highly deferential to a district court judge’s determination. Allcare is a nonpracticing entity that owns a patent covering a health-care management system. Highmark, the operator of a Blue Cross Blue Shield organization, sought a declaratory judgment of noninfringement, invalidity, and unenforceability, and Allcare counterclaimed for infringement. After the district court entered a final judgment of noninfringement, Highmark moved for attorney fees under 35 U.S.C. § 285. In a highly detailed opinion in excess of 100 pages, the district court judge awarded Highmark over $4.6 million in attorney fees, $200,000 in expenses, and $375,000 in expert fees and expenses. Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., 706 F. Supp. 2d 713, 716 (N.D. Tex. 2010). The district court judge found Allcare’s conduct was both “vexatious” and “deceitful,” as it had “pursued [the] suit as part of a bigger plan to identify companies potentially infringing [its] patent under the guise of an informational survey, and then [] force those companies to purchase a license of [its] patent under threat of litigation.” Id. at 736–37. Further, Allcare “maintained infringement claims well after such claims had been shown by its own experts to be without merit and did so as a tactic to provide leverage against Highmark’s pending claims . . . [and] asserted defenses it and its attorneys knew to be frivolous.” Id. at 737. On appeal, the Federal Circuit affirmed the exceptional case determination as to one claim of the asserted patent but reversed as to another. Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 687 F.3d 1300, 1311–15 (Fed. Cir. 2012). The Federal Circuit ruled that the question of whether a _________________________________________________________________________________________________________

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case is exceptional “is a question of law based on underlying mixed questions of law and fact” and therefore undertook a de novoreview of the district court judge’s determination. Id. at 1309 (quoting Bard Peripheral Vascular v. W.L. Gore & Assocs., Inc., 682 F.3d 1003, 1004–6 (Fed. Cir. 2012)). Judge Haldane Robert Mayer dissented, opining that reasonableness is a finding of fact and that the majority erred in holding that the determination of whether a case is exceptional should be reviewed de novo on appeal.Id. at 1321–22. Highmark then moved for an en banc rehearing, which was denied. Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 701 F.3d 1351 (Fed. Cir. 2012). Notably, five Federal Circuit judges dissented to the denial of Highmark’s request for rehearing en banc. Id. at 1362–67. On appeal to the Supreme Court, Highmark argued that a district court judge’s determination regarding whether a case is exceptional should be afforded deference on appeal, just as fee awards under Rule 11 and the Equal Access to Justice Act are subject to a deferential standard of review. Brief for Petitioner at 13–15. During oral arguments, Highmark’s attorney was questioned as to whether such deference would create uncertainty and inconsistency among the district courts. Transcript of Oral Argument at 10. Allcare’s attorney seized on these questions and argued that de novo review of these determinations by the Federal Circuit effectuates the rationale behind the creation of the Federal Circuit—to ensure uniformity in patent law. Id. at 25. Chief Justice John Roberts questioned that reasoning by noting that the Federal Circuit’s denial of en banc rehearing had sharply split the court—indicating a lack of uniformity and certainty. Id. at 25–26. In a unanimous decision, the Supreme Court noted that it had concurrently rejected the Federal Circuit’s test for determining whether a case is exceptional as “unduly rigid and inconsistent with the text of § 285.” Highmark, No. 12-1163, slip op. at 4. Because the Court in Octane committed the determination of whether a case is “exceptional” to a district court judge’s discretion, the Court in Highmark held that such a determination must be reviewed under the deferential “abuse of discretion” standard. In the Court’s view, the “abuse of discretion” standard follows from and is mandated by its decision in Octane and is appropriate because the determination of whether a case is exceptional under 35 U.S.C. § 285 is left to the discretion of the district court judge. Neither a question of law nor a question of fact, the Court found that determining whether a case is exceptional under § 285 is a “matter of discretion” “rooted in factual determinations.”Highmark, No. 12-1163, slip op. at 4–5. It agreed that that determination is similar to the determinations made in awarding fees under Rule 11 and the Equal Access to Justice Act.Id. The Court also ruled that the abuse of discretion standard is supported by the language of the statute itself, which implies that deference to a district court judge should be afforded on appeal. Id. at 5. Finally, the Court noted that a district court judge “‘is better positioned’ to decide whether a case is exceptional . . . because it lives with the case over a prolonged period of time.” Id. (quoting Pierce v. Underwood, 487 U.S. 552, 559–60 (1988)).

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Applying this deferential standard of review, the Court remanded the case to the Federal Circuit for further proceedings consistent with the opinion. Conclusion The relaxed standard for determining whether a case is exceptional, coupled with the more deferential standard of appellate review of such determinations, has the potential to change the landscape of patent litigation. Federal Circuit Chief Judge Randall Rader espoused in a New York Times op-ed that district court judges should curb the abusive litigation tactics of nonpracticing entities, or “trolls” as Judge Rader called them, using 35 U.S.C. § 285. Randall R. Rader, Colleen V. Chien & David Hricik, “Make Patent Trolls Pay in Court,” N.Y. Times, June 5, 2013, at A25. Now that the standard for applying section 285 has been relaxed and the relief that it provides has seemingly moved more closely within the reach of litigants, section 285 has the potential to prove a more readily available and useful litigation weapon than it was in the past. Keywords: litigation, trial evidence, patent, exceptional case, standard of review, attorney fees Jeffrey K. Dicker is an associate in the New York, New York, office of Ropes & Gray LLP.

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Lincoln’s Last Murder Trial: People v. Harrison By Travis H.D. Lewin

On July 4, 1859, at a picnic along the Sangamon River, two young men from the small village of Pleasant Plains, Illinois, got into an argument so heated that they nearly came to blows. Their disagreement persisted, and the following week the men, almost getting physical again, had to be pulled apart by friends. They came from two prominent farming families in the area. Peachy Quinn Harrison, called Quinn, was the youngest son of Payton Harrison, a wealthy Republican farmer, who was a friend and political supporter of Abe Lincoln. The other man was Greek Crafton, whose parents were Democrats and well-regarded farmers. The exact nature of the dispute is not known for certain, although the difference of politics certainly didn’t encourage friendship. What is known, however, is that one of Quinn’s sisters had married one of Greek’s brothers. At some point, Quinn came to believe that his sister was being abused by her Crafton husband. In response to this, Quinn made crude comments about Greek’s brother that were then carried back to Greek. Quinn Harrison and Greek Crafton’s quarrel came to a fatal end on Saturday, July 16. Early that morning, Greek, with a friend, went looking for Quinn. Entering the Short & Hart Dry Goods Store, Greek found Quinn sitting at a counter reading a newspaper. Greek’s older brother, John, who had come into the store earlier, was lying on a rear counter. Greek took off his coat and, joined by John, immediately attacked Quinn, pulling him away from the counter. The two Crafton brothers then began dragging the struggling victim toward the rear of the store. Storeowner Benjamin Short tried to intervene by grabbing hold of Greek, but he was quickly stopped by John. At some point, Greek threw a punch at Quinn. Suddenly, Quinn took out a hunting knife. He only cut John on his wrists but fatally slashed Greek across the stomach. Greek lingered and eventually died on Monday, July 18. On August 3, a coroner’s jury heard testimony and determined that Greek’s death was a homicide. On August 30, the matter was presented to a Sangamon County grand jury, which indicted Quinn for murder. The Harrisons hired prominent attorney Stephen T. Logan, a former judge and member of the Illinois legislature, to defend Quinn. Logan was Lincoln’s former law partner and friend, and he brought Lincoln in to work on the case. The defense team was completed when Lincoln’s other partner, William Herndon, and Shelby Cullom, a future Illinois governor and U.S. senator, joined in. The prosecution team was no less famous. The lead attorney was John M. Palmer, who also became an Illinois governor and U.S. senator. Assisting Palmer, was the Sangamon district attorney, James B. White, as well as John A. McClernand, who would later become a Civil War general, a congressman, and a judge. In the first of many innovative defense strategies, Lincoln and Logan made no attempt to delay the start of the trial. This was particularly uncommon for Lincoln, as he was noted for delaying important trials to tone down community fever. In the Harrison case, however, he departed from this practice, and the trial commenced on August 31, just one day after Harrison was indicted. Logan and Lincoln likely sought an immediate trial due to the fact that Greek’s death had deeply _________________________________________________________________________________________________________

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divided the small, close-knit village and the rage for revenge was so great that the two attorneys probably felt compelled to move swiftly to avoid additional violence. Evidence and Trial Procedures: Then and Now Although the basic trial procedures followed in that 1850s Illinois country courtroom were not much different from what occurs in modern courtrooms, the attorneys’ conduct in the Harrison case did differ somewhat from how attorneys try cases today. One of the first things a trial lawyer will note from the transcript is that few objections were made by any of the lawyers. None was calculated to be obstructive—to interfere with the opponent’s examination of a witness. Objections to form were not made, only to substance. Thus, even though all of the attorneys used numerous leading questions on direct examination and asked questions calling for lengthy rambling narratives, these technically improper questions never drew objections. For example, during a direct examination, Lincoln asked a defense witness to describe the fight by asking, “Go on now & tell the jury what you saw at the time of the altercation between Greek & Harrison.” The response was lengthy and even included statements made by Quinn as he called out for help, yet the prosecution did not object to its form. The Law Practice of Abraham Lincoln, Case Details: People v. Harrison, File ID: l04306, Transcript at 60.Lincoln and Logan were able to bring out from several of Logan’s witnesses that Quinn said, “For God’s sakes have I no friends here?” A second difference between procedures then and now is that Lincoln and Logan frequently took turns questioning while examining a single witness. Alternating questions by attorneys for the same side is sometimes referred to as “shot gunning” and is not condoned in modern practice. 98 C.J.S. § 438. However, Lincoln and Logan did this during both direct and cross-examination. On one occasion, Logan even asked a question during Palmer’s direct examination! Transcript at 10. Judge Logan broke in and asked Silas Livergood if he heard “if anything was said” leading to Quinn’s cries for help. Another courtroom practice utilized during the Harrison trial, yet not generally practiced in courtrooms today, was allowing jurors to directly question witnesses. In the few jurisdictions where jurors are currently permitted to ask witnesses questions, the presiding judge strictly controls the process. McCormick on Evidence § 8 (6th ed.). See alsoUSLegal, Inc., Questioning of Witnesses by Jurors, for an overview of present practice in which seven states permit or mandate the practice. In those jurisdictions, jurors are required to write down their questions, which are then delivered to the judge. The judge consults with counsel and, if both parties agree, reads the questions to the witness. This process prevents relevance problems and avoids putting lawyers in the predicament of having to object aloud to a juror’s improper question. In the Harrison case, however, on at least one occasion, a juror asked a question of a prosecution witness who was about to testify to what Quinn told him of “difficulties” he was having with Greek. Transcript at 37.

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The Defense Theory and Its Difficulties The defense’s best hope for an acquittal was to prove that Quinn acted in self-defense on the day of the fight. But this was not going to be an easy task. Under the law in 1859, not unlike today, to successfully assert that Harrison used a deadly weapon in self-defense, it had to “appear that the danger was so urgent and pressing that in order to save his own life, or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary[.]” Ill. Gen. Stat., Div. V, §§ 32, 33 & 34 (1856). By the start of the trial, it was undisputed that, although Greek Crafton was the initial aggressor, he only used his hands and fists, while Quinn had struck back with a hunting knife. Therefore, in the absence of any evidence that Greek had sought to kill or do great bodily harm, the defense needed to prove that Quinn was in reasonable fear of his life or of great bodily harm. But how were Lincoln and Logan going to do this? We cannot, for the most part, know the answer to this question from the trial transcript. When reading the transcript and trying to understand Lincoln’s defense theory and strategy, it would be helpful to read his opening statement, his closing argument, and any arguments he made to the judge. However, opening statements, closing arguments, and arguments made outside the presence of the jury were not recorded at the time and are therefore not a part of the trial transcript. Thus, anything that can be learned about the defense strategy comes only from the testimony. Based on the beginnings of the trial transcript, it appears that to prove that Quinn was in fear of serious bodily injury or death, the defense planned to focus on two key points: that Greek was a strong, intimidating bully, while Quinn was weak from a preexisting illness; and that in the weeks leading up to the fight, Greek had repeatedly threatened to attack Quinn. However, as will be explained, obtaining admissible evidence to prove these points was going to be an uphill battle for the defense. To start, Quinn could not take the stand and testify that he had heard threats by Greek because, in 1859, a defendant was incompetent to testify on his own behalf. McCormick on Evidence § 65. Therefore, Lincoln and Logan were going to have to use other witnesses to prove that Greek was much larger than Quinn and that Greek had threatened Quinn. In addition, the defense planned to end their case in dramatic fashion by calling Peter Cartwright, a minister who would provide key testimony about Greek’s dying plea for all to forgive Quinn because the fight was Greek’s fault. But the defense’s entire strategy suffered a seemingly fatal blow when the trial judge, Edward Rice, sustained the prosecution’s objections to any testimony about Greek’s threats and gave initial indications that Reverend Cartwright’s testimony would also not be admitted into evidence. The Law Practice of Abraham Lincoln, supra. Judge Rice was a Democrat and said by Lincoln’s partner, William Herndon, to be an enemy of Lincoln. Herndon’s Life of Lincoln 264– 65 (DaCap 1983).Whether an enemy of Lincoln or not, Judge Rice studied law under John Palmer and is said to have presided over more than 470 cases in which Lincoln was a litigant. The Law Practice of Abraham Lincoln, supra. The prosecution’s case-in-chief. Despite these unfavorable rulings, Lincoln and Logan began proving their theory of self-defense in the prosecution’s case-in-chief. First, they _________________________________________________________________________________________________________

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used the prosecution’s own witnesses to show that Greek was threatening Quinn. For example, John Bone, a friend of Quinn’s, testified that Quinn told Bone that he was having some difficulties with Greek. Bone also explained how Quinn showed him the knife he would later use to stab and kill Greek. With Quinn’s statements about the difficulties that he was having with Greek and by showing Bone the knife, the defense showed that Quinn was implying that he knew of Greek’s threats to fight him. Transcript at 37. Along with eliciting testimony about Greek’s threats, Lincoln and Logan were able to show through cross-examination of several prosecution witnesses that Greek was bigger and stronger than Quinn and that Quinn sought to avoid an attack. Perhaps the most memorable testimony favorable to the defense that occurred during the prosecution’s case came when, during the cross-examination of John Crafton, after the witness tried to explain how Greek had grabbed Quinn, the tall Lincoln playing the role of Greek with the smaller Palmer acting as the defendant Quinn illustrated the position of Greek and Quinn as it appeared during the fight. Transcript at 30–31. This must have left a strong visual impression of the stronger Greek on top of the weaker Quinn. Although it does not appear that the defense was able to prove that Greek, his brother John, and a friend, Silas Livergood, had set out that Saturday to find and attack Quinn, it must have left a strong impression in the jurors’ minds that the three had conspired to assault Quinn. Transcript at 16. Logan asked the witness Livergood if he went “in concert with Greek Crafton?” Livergood denied it, answering, “No sir. He asked mee to go along with him. He did not tell me what for.” Palmer objected that this was “not proper crossexamination,” and after a brief argument, Judge Rice agreed saying, “[I]t was not explanatory & should be brought in as the defendant’s evidence.” However, Judge Rice did not strike the question or answer. The defense was able to show that John was lying in the back of the Short & Hart Dry Goods Store having no apparent business there and that, when Greek assaulted Quinn, John joined in the fight. The defense was even able to get John to admit that he told Ben Short to let them alone because “Greek could whip him. . . .” Id. Additionally, through cross-examination, the defense tried to leave the jury with the inference that Livergood stood guard at the front of the store preventing anyone from entering during the fight. However, despite the fact that they had elicited favorable evidence during the prosecution’s case-in-chief, by the time the state rested, it was clear that the defense was still in trouble. Palmer had proven that the defendant had caused the death of Greek with a knife during a fight in which neither Greek nor his brother John had a weapon of any kind. Also, Palmer had ended with powerful testimony from William Purvic, a friend of the defendant, who testified that, within two hours after the fight, he saw the defendant at his home. Purvic asked Quinn if Quinn had been hurt “very bad.” Quinn replied he had been hurt bad. But what came next was devastating evidence against the defendant. Purvic testified that Quinn then said, “. . . there was no danger of killing a hound . . . and if his knife would have been longer he would have his work up quicker & easier.” Transcript at 42. With that testimony, the prosecution had ended quite strongly by _________________________________________________________________________________________________________

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showing the defendant’s criminal state of mind. Furthermore, Logan’s cross-examination did little to deflect the harm, as he merely asked questions seeking to show that no one else heard the statement. Transcript at 44. The defense’s case-in-chief. Now it was the defense’s turn to use its own witnesses to further its self-defense theory. It began the case-in-chief by calling storekeeper Ben Short, who described Quinn’s attack, John’s role, Quinn’s cries for help, and the respective size of Greek and Quinn; thus reemphasizing what Lincoln and Logan had already brought out on cross-examination of the prosecution witnesses. Palmer conducted a lengthy but generally ineffective cross-examination until the very end when Palmer asked Short a rather convoluted question: “Did you see any sign of any particular danger to anyone, or regard Harrison as in danger of immediate injury?” Lincoln’s objection, one of the few he made, was sustained without argument. Transcript at 59. Although the question was awkward and possibly objectionable as to form, Palmer’s effort to show that Quinn was not in danger of great bodily injury was a good strategy. Palmer probably knew that it was the question and not the answer he wanted the jury to hear. Lincoln and Logan then sought to get Greek’s threats into evidence and encountered yet another hurdle raised by Judge Rice. When their first witness was asked if he had heard Greek make any threats before the Saturday fight, Palmer objected, saying, “unless evidence was shown in connection with it along with knowledge of these threats to the defendant prior to the affray.” Transcript at 60. After a lengthy but unrecorded argument, Judge Rice sustained the objection saying “that evidence of threats by the deceased Crafton standing alone, were inadmissible—that a knowledge of these threats must be proved to have been heard by the prisoner before the fight & hence the objection made by the prosecution to a question calling for these threats would be sustained by the Court.” Id. Thus, the defense had apparently lost a critically important battle at the very start of its case. Lincoln and Logan, however, did not concede defeat. In response to Judge Rice’s ruling, Lincoln withdrew the witness and produced other evidence to satisfy the judge’s ruling that, before the threats would be admissible, the defense must show that the defendant had heard the threats. One witness, Jacob White, testified that Greek told him that he was going to “whip” Quinn and that White then told Quinn about this threat. However, White did not mention that the threat came from Greek. But then, without objection, White said that he could tell that Quinn knew Greek made the threat. Transcript at 64–65. The battle over Greek’s threats would be fought again when another prosecution objection brought the testimony to a halt. After the respective sides made their arguments, Judge Rice finally reversed himself and permitted the defense to produce evidence of Greek’s threats. After the testimony regarding Greek’s threats was admitted, the defense called Dr. Albert Atherton, the Harrisons’ family doctor. Dr. Atherton reinforced the physical disparity _________________________________________________________________________________________________________

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between Greek and Quinn by testifying that Quinn was sickly that summer to the point where he was unable to do heavy fieldwork. After Dr. Atherton came the most important defense witness, Reverend Peter Cartwright, Quinn’s grandfather and a national figure in both politics and religion. Once he had Reverend Cartwright on the stand, Logan asked the question on which the outcome of the trial would be determined: What did he hear Greek say as the victim lay dying? Palmer objected, knowing what Cartwright would say because the minister had previously testified at the coroner’s inquest. Judge Rice announced that he would take Reverend Cartwright’s testimony “absent the jury.” Transcript at 70. Once Reverend Cartwright finished testifying before Judge Rice, a lengthy argument ensued, going deep into the night of the second day of the trial. As previously mentioned, arguments heard outside the presence of the jury were not recorded in the transcript. Our only source of information regarding the substance of the arguments comes from Herndon’s report of it in his Life of Lincoln. Considering the fact that Herndon was Lincoln’s partner, it should come as no surprise that Herndon claimed that Judge Rice “continually ruled against us” and that Herndon characterized Judge Rice’s rulings as “absurd and almost spiteful.” Keeping this in mind, Herndon summarized the argument as follows: At the reassembling of court [Lincoln] rose to read a few authorities in support of his position. In his comments he kept within the bounds of propriety just far enough to avoid a reprimand for contempt of court. He characterized the continued rulings against him as not only unjust but foolish; and, figuratively speaking, he pealed the Court from head to foot. I shall never forget the scene. Lincoln had the crowd, a portion of the bar, and the jury with him. He was wrought up to the point of madness. ‘[He was] mad all over . . . he’ was alternately furious and eloquent, pursuing the Court with broad facts and pointed inquiries in marked and rapid succession. [Herndon then reported that Lincoln told the following story]. “In early days a party of men went out hunting for a wild boar. But the game came upon them unawares, and scampering away they all climbed the trees save one, who, seizing the animal by the ears, undertook to hold him, but despairing of success cried out to his companions in the trees, ‘For God’s sake, boys, come down and help me let go!’ . . . His masterly arraignment of law and facts had so effectually badgered the judge that, strange as it may seem, he pretended to see the error in his former position, and finally reversed his decision in Lincoln’s favor. Herndon’s Life of Lincoln, supra, at 264–65. Was Herndon’s memory of the arguments accurate? Among other things, Lincoln could not have “had the jury with him” because the arguments (and Lincoln’s “oratory”) were _________________________________________________________________________________________________________

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made outside the presence of the jury. But whether Herndon’s recount was accurate or not, Judge Rice overruled Palmer’s objection, and Reverend Cartwright testified to what Judge Rice ruled to be a dying declaration. Consider the transcript and then decide for yourself whether Greek’s last words qualified then or now as a dying declaration. In 1859, as now, the statement had to describe the events leading to the declarant’s death. (For example, the Federal Rules of Evidence provide that “a statement made by a declarant [must concern] the cause or circumstances of what the declarant believed to be impending death.” Fed. R. Evid. 804(b)(4). As Greenleaf put it in his 1842 Treatise on Evidence, “[The dying declaration] must be confined to what is relevant in issue . . . [and] the circumstances of the death are the subject of the dying declarations.” 1 Greenleaf, A Treatise on the Law of Evidence, pt. II, §§ 156, 160, 186 & 190. But were Greek’s statements descriptive of the affray or were they merely statements of a dying man forgiving his attacker? Reverend Cartwright was asked to testify before the jury just as he had before Judge Rice the night before. Lincoln had Reverend Cartwright first testify that he looked upon Greek as being a dying man. Then Reverend Cartwright explained that Greek said, “‘The honest hour has come, and in a few moments I expect to stand before my final Judge; do you think there’s any mercy for me? Will you pray for me?’” Transcript at 74. With that, Lincoln had laid a proper foundation for the admissibility of the dying declaration provided that it meant the substantive requirement of relevance. But did it? This is what Reverend Cartwright reported Greek said: “‘I have brought it upon myself. I forgive Quinn and I want it said to all my friends that I have no enmity in my heart against any man; and if I die . . . If I die, I want it declared to all that I die in peace with God and all mankind.’” Transcript at 75. That was not a description of the fight. It was not a statement by Greek admitting that he intended to cause great bodily harm to Quinn. It was merely a statement of forgiveness and regret. But it was received into evidence and may have been the turning point in the case. Then came a curious event. Reverend Cartwright finished his direct testimony and asked if he could be excused “altogether” as he had an engagement in Jacksonville. Palmer agreed and Reverend Cartwright was excused. The prosecution thus conducted no crossexamination. This was likely a very good decision on Palmer’s part because he must have thought that Reverend Cartwright had done little to harm his case. But, perhaps more importantly, Reverend Cartwright was known and most likely loved and respected by the citizens in Pleasant Plains, including the Craftons. Thus, any attack on Reverend Cartwright would have been dangerous as it might well have offended the jury. The second critical argument by the defense came immediately following Reverend Cartwright’s testimony. The defense renewed its argument for the admissibility of Greek’s threats. Lincoln and Logan offered to prove that Greek threatened Quinn at various times between July 4 and 16, right up to a half hour before the fatal encounter. According to the defense, this “[made] it probable that [Greek] was in the same state of _________________________________________________________________________________________________________

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mind at the time of the struggle.” Surprisingly, even though Lincoln and Logan were forced to admit that they “could not promise to offer any proof that the threats were brought to the knowledge of the prisoner before the affray,” Judge Rice reversed his previous ruling and permitted Lincoln to produce evidence of Greek’s threats. Transcript at 76. After winning this pivotal argument, the defense called four witnesses to recount Greek’s threats. One witness testified that he warned Greek that Quinn had a knife and would kill Greek if Greek attacked him. Greek said to two other witnesses that he was aware that Quinn had weapons, but he said that he still intended to “maul” and “stomp” Quinn. Not only was Lincoln able to have the witnesses repeat Greek’s threatening words, but Palmer repeated them on cross-examination and even had one witness repeat the threatening words, not once but three times. Transcript at 90. The prosecution’s rebuttal: The dying declaration debate continues. The disputes surrounding Reverend Cartwright’s testimony and Greek’s dying declarations did not end once the defense rested its case. Palmer hadn’t given up. He called a rebuttal witness, Jacob Epler, who would testify that he heard Greek vow revenge right up to his death and that Greek made other statements apparently contrary to his dying declarations. Lincoln objected, and once again Judge Rice took the testimony outside the presence of the jury. Judge Rice sustained the objection, ruling that the statements did not refer to the events leading to Greek’s death, nor were they made during or after Greek’s dying declarations. Transcript at 97–100. John Palmer still did not quit in his quest to disprove Reverend Cartwright’s testimony. He next called Dr. Million, who had previously testified at the coroner’s inquest that he was at Greek’s bedside and had had several conversations with Greek regarding the knifing. Million explained that not only did Greek not absolve Harrison from blame, but he in fact censured him. Ill. Daily State Reg., Aug. 3, 1859, cited in The Law Practice of Abraham Lincoln, supra, Doc. No. 78981. Just as he had with Reverend Cartwright and Jacob Epler, Judge Rice heard this testimony outside the presence of the jury. Finding that Greek’s statements to Epler, like the statements made to Dr. Million, were made before and not after Greek’s declarations to Cartwright, Judge Rice sustained Lincoln’s objection. The judge’s rulings appear correct as the statements would not have qualified as dying declarations for there was no proof that Greek was aware of the certainty of his impending death at that earlier time. As a result of Judge Rice’s ruling, Palmer withdrew the witnesses, resting the prosecution’s case. The judge’s ruling precluding the prosecution from offering Greeks statements made before he knew he was dying was correct in 1859 and would be correct today. Fed. R. Evid. 804(b)(4). Unlike Palmer who had a well organized case-in-chief and who ended strong with testimony of Quinn’s own words showing hatred for Greek and a total lack of care as to whether Greek lived or died, the defense was disorganized. This was probably due to _________________________________________________________________________________________________________

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Judge Rice’s initial ruling precluding evidence of the victim’s threats. It would appear that if Judge Rice allowed the defense to show the threats first, the defense would then have called Reverend Cartwright ending with the dying man’s impassioned plea for mercy. Some Final Comments We will never know exactly why the jury acquitted Quinn Harrison. Ironically, if they were persuaded by the defense evidence that Greek Crafton was strong and healthy, while Quinn was weak and sickly, whatever Quinn’s physical condition actually was at the time of the fight, he lived to die of pneumonia just days short of his 83rd birthday. Quinn’s biography was provided in part from Christopher A. Schnell, assistant editor, Papers of Abraham Lincoln, 1 Old State Capitol, Springfield, Ill., and from information obtained in J. Houston Harrison, Settlers by the Long Grey Trail 480, 559 (Genealogical Publ’g Co., Baltimore, Md. [1984].) See also Familysearch.org. The trial must have been a difficult one for Lincoln. Quinn’s father, Peyton Harrison, was an old friend of Lincoln and one of his political supporters. Greek Crafton, on the other hand, had been one of his law clerks and was well liked by Lincoln. Pleasant Plains was a village torn apart by the killing. In fact, the Crafton family friends’ were so angry after the trial that they managed to have Benjamin Short arrested and charged with being an accessory to the killing of Greek Crafton, a charge that was ultimately dropped. People v. Short, No. L04439;Ill. State Reg., Sept. 13, 1859 (Doc. No. 84912); Ill. State J., Sept. 13, 1859 (Doc. No. 76463). Even though we cannot know the openings, closings, and how the attorneys argued, trial lawyers can still learn much from the trial. We were in law school or in the many PLE programs how to successfully cross-examine, the teachers stressing that impeachment was the strongest method of cross-examination. There was only one attempt at impeachment and that by Judge Logan, who, after starting to confront a witness who testified to hearing Greek threaten to thrash Quinn, asked the witness “if that was a part of your statement before?” But when the witness said it was, Logan made no attempt to show that it was added or changed testimony.Transcript at 90.But what both Lincoln and Logan did with their cross-examinations was to bring out facts favorable to the defense. They asked most prosecution witnesses to state the comparative sizes and strengths of Greek and Quinn. They established from John Crafton and one other prosecution witness that Quinn had cried out for help and said he didn’t want to fight. Although Logan was an experienced trial lawyer, he broke one of the fundamental rules young attorneys are taught about cross-examination: The beginner is told not to repeat the direct. Logan, however, did that on numerous occasions by having the defense witnesses state again the threats they heard Greek make. Indeed, on one occasion, Logan had a witness repeat the threats three times, and when Dr. Atherton testified to Quinn’s sickness the summer before the fight, Logan had him repeat his testimony enabling Dr. Atherton to expand on Quinn’s condition and thus substantially reinforcing his direct testimony. Transcript at 67. _________________________________________________________________________________________________________

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Palmer lost the case, but he had an excellent plan. He began strong and ended with devastating testimony. Palmer did what the beginning trial lawyer is told to do: Start strong and end strong. On the other hand, the defense case appeared to be somewhat disorganized. But that may have occurred because Judge Rice’s initial ruling preventing the defense from offering evidence of Greek’s threats caused Lincoln and Logan to change the order of their witnesses. The defense may have intended to end their case with the powerful testimony of Reverend Peter Cartwright but, because of Judge Rice’s rulings, had to call him out of their intended order. That also teaches a lesson: that the trial lawyer must not concede defeat in the face of adverse rulings; the trial lawyer must continue his or her case. Perhaps the most important lesson learned from the trial is that good trial lawyers only object when it is necessary to protect their case. Both Palmer and the defense lawyers made no objections to improper form and made none to be obstructive. They only objected when they sought to prevent their opponents from bringing up harmful irrelevant testimony. Palmer may have ultimately lost his objections to prevent improper hearsay from Rev. Cartwright and to prevent testimony of Greek’s threats, but he had solid foundations for both objections. As one who had treasured what little I was able to find and read of Lincoln’s actual trial work beyond anecdotal reports, I was excited to learn of the existence of the transcript. But, like a little kid who has tasted his first lick of ice cream, I craved more. I wanted to hear Lincoln’s openings and closings, to “hear him speak,” to learn how Lincoln and Logan created the defense theory and how Lincoln swayed the jury, which took but an hour to reach a unanimous verdict of not guilty. Having read Herndon’s report of the objection arguments, both in his book and again in a letter sent to his coauthor J. W. Weik on November 20, 1885, wherein Herndon reiterates Judge Rice’s “absurd” and “spiteful” rulings, I wanted to “hear” Lincoln’s arguments—to read his words that convinced the antagonistic Judge Rice to reverse himself. But the reporter did not transcribe Lincoln’s arguments. Thus, I am left hungry for something I cannot have—other than to know that Lincoln had won a case that appeared at the start to be one he could not win. Keywords: litigation, trial evidence, Lincoln, People v. Harrison, defense, self-defense, dying declaration, objections Travis H.D. Lewin teaches courses in law and psychiatry, evidence, constitutional criminal procedure, trial practice, law firms, and street law at the Syracuse University College of Law in Syracuse, New York. Professor Lewin would like to acknowledge the assistance of his research assistant, Mary Louise Wright, in the preparation of this article.

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NEWS & DEVELOPMENTS

FRE 2014 Amendments: Clarifying Certain Hearsay Exceptions One of the bedrock rules of evidence in the American judicial system is that hearsay—an out-ofcourt statement offered for the truth of the matter asserted—is generally inadmissible. See Fed. R. Evid. 802. The Federal Rules of Evidence (FRE) provide exceptions to the hearsay rule and, on April 25, 2014, the Supreme Court submitted to Congress four amendments to the FRE clarifying some of those exceptions. The FRE amendments will become effective on December 1, 2014 unless Congress enacts legislation to reject, modify, or defer the rules. See 28 U.S.C. §§ 2074–75. Rule 801(d)(1)(B): Prior Consistent Statements Rule 801(d)(1) excludes some statements from the hearsay rule if the declarant testifies at trial. In particular, Rule 801(d)(1)(B) currently excludes a declarant’s prior statement that “(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying.” In other words, Rule 801(d)(1)(B) currently allows a witness’s prior consistent statement to be admitted substantively for the purpose of rebutting a charge of recent fabrication or improper influence or motive, but a witness’s prior consistent statement remains admissible only for rehabilitation if it is offered to explain a prior inconsistency or rebut a charge of faulty recollection. See Fed. R. Evid. 801(c)(2). The 2014 amendment to Rule 801(d)(1)(B) will allow a prior consistent statement to be admitted substantively in either scenario. It will provide that a statement is not hearsay if it: (B) is consistent with the declarant’s testimony and is offered: (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground . . . . This amendment makes sense. It “does not make any consistent statement admissible that was not admissible previously—the only difference is that prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well.” Rep. of the Judicial Conference Comm. on Rules of Practice & Procedure, App. D, at 7–8 (Sept. 2013). The distinction between offering a prior consistent statement substantively or for rehabilitation has little practical effect. The witness has already testified, so the statement will not add new content to the proponent’s case. This amendment is thus significant in how trial attorneys conceptualize admissible evidence, but it is unlikely to impact the conduct of trials.

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Rules 803(6), (7), and (8): Business Records, Absence of Business Records, and Public Records Rules 803(6), (7), and (8) provide exceptions to the hearsay rule for records of a regularly conducted activity (often called business records), the absence of a business record, and public records, respectively. These rules state that business and public records are admissible once the proponent has established certain requirements tending to prove their authenticity, as long as no other circumstances indicate a lack of trustworthiness. See Fed. R. Evid. 803(6)(E); 803(7)(C); 803(8)(B). The trustworthiness subsections in the current rules, however, do not identify which party bears the burden of proving a record’s trustworthiness or untrustworthiness. Although almost every court that has decided the issue has ruled that the opponent bears the burden of proof on this issue, see, e.g., Shelton v. Consumer Prods. Safety Comm’n, 277 F.3d 998, 1010 (8th Cir. 2002), a few courts have ruled that the proponent bears this burden, see, e.g.,United States v. Dowdell, 595 F.3d 50, 72 n.18 (1st Cir. 2010). The amendments resolve any conflict and clarify the rules, amending them as follows: (6) Records of a Regularly Conducted Activity . . . (E) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness. (7) Absence of a Record of a Regularly Conducted Activity . . . (C) neither the opponent does not show that the possible source of the information nor or other circumstances indicate a lack of trustworthiness. (8) Public Records . . . (B) neither the opponent does not show that the source of information nor or other circumstances indicate a lack of trustworthiness. Placing the burden of proof on the opponent of a record is logical. The proponent has already established that the record satisfies certain criteria tending to prove its reliability; it is thus appropriate to require the opponent to prove any circumstances of untrustworthiness to keep the record from being admitted into evidence. Keywords: litigation, trial evidence, FRE 2014 amendments, prior consistent statements, business records, Rule 801(d)(1)(B), Rules 803(6), 7), and (8) –Christopher J. Walsh, Ropes & Gray LLP, Boston, MA _________________________________________________________________________________________________________

Are Exceptions to the Hearsay Rule Outdated? On February 13, 2014, the U.S. Seventh Circuit Court of Appeals affirmed the convictions of felon in possession of a firearm and felon in possession of ammunition after calling into question _________________________________________________________________________________________________________

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the validity and usefulness of the present sense impression, Fed. R. Evid. 803(1), and excited utterance, Fed. R. Evid. 803(2), exceptions to the hearsay rule. U.S. v. Boyce, 742 F.3d 792 (7th Cir. 2014). Notably, the concurring opinion by Judge Posner called for the replacement of the formalistic hearsay exceptions with a more practical, case-by-case hearsay analysis. By way of background, immediately after being battered by the defendant, the defendant’s girlfriend ran to a neighbor’s house and called 911 requesting police assistance. When asked by the 911 operator if any weapons were involved, the girlfriend answered affirmatively “yes” that the defendant had a weapon in his possession. The responding officers arrived and witnessed the defendant retrieving and tossing a handgun into a nearby yard. The defendant was arrested and three .357 bullets were later recovered from Boyce’s pant pockets. At trial, the defendant’s girlfriend did not testify, but the 911 call recording and transcript, which was a major piece of evidence for the prosecution, was admitted into evidence over objection under the present sense impression and excited utterance exceptions to the hearsay rule. On appeal, the Ninth Circuit initially questioned the reasoning and basis of the hearsay exceptions. Stating that the present sense impression was based on the “folk psychology of evidence,” the Ninth Circuit found it difficult to take the exception “seriously” since witnesses are capable of “spontaneous lies in emotional circumstances.” Further, the Ninth Circuit quoted other secondary sources on evidence that found that “the entire basis for the [excited utterance] exception may . . . be questioned” because of the “distorting effect of shock and excitement upon the declarant’s observation and judgment.” Nonetheless, the Ninth Circuit found no abuse of discretion in the district court’s decision to admit the 911 call under the present sense or excited utterance exceptions to the hearsay rule. The Ninth Circuit outlined the requirements of the present sense impression and indicated that it likely applied in this case, without “definitely deciding” whether it failed as a proper exception since the statement was admissible as an excited utterance. To qualify as an excited utterance, the proponent is required to demonstrate that: (1) a startling event occurred; (2) the declarant made the statement under the stress of the excitement caused by the startling event; and (3) the declarant’s statement related to the startling event. The Ninth Circuit found all three requirements were met because the domestic battery was a startling event; the call was made just after the event when she was still under the stress of the excitement caused by the domestic battery; and the statement related to the domestic battery because it “described a threat posed by the man who battered her.” In his concurring opinion which sought to “amplify” the majority’s opinion, Judge Posner questioned the validity of such formalistic hearsay rule exceptions. First, Judge Posner found the present sense impression’s rationale lacking because “immediacy” has been long subjected to subjective interpretation and “[e]ven real immediacy is not a guarantor of truthfulness.” Further, he questioned whether the exception was grounded in sound psychology since it was entered into the American legal system long before there was even a field for cognitive psychology. _________________________________________________________________________________________________________

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Next, Judge Posner found even less support for the excited utterance exception since even a nonpsychologist can find a lack of confidence or reliability in an unreflective utterance provoked by excitement. Noting that the Advisory Committee Notes to Fed. R. Evid. 803(2) admit to the exception’s criticisms, Judge Posner found that the exception “rests on no firmer ground than judicial habit, in turn reflecting judicial incuriosity and reluctance to reconsider ancient dogmas.” Not wanting to leave an impression that he would see a reduction in the amount of admissible hearsay evidence, Judge Posner concluded by stating that the hearsay rule is “too complex” and “archaic” such that trials would be better served with a simple rule, similar to Fed. R. Evid. 807, which would admit hearsay evidence (1) when it is reliable, (2) when the jury can understand its strengths and limitations, and (3) when it will materially enhance the likelihood of a correct outcome. Keywords: litigation, trial evidence, excited utterance, present sense impression, hearsay rule, exceptions, witness testimony, reliability –Daniel "Danny" J. Dysart, Frilot L.L.C, New Orleans, LA

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Trial Evidence Spring 2014, Vol. 22 No. 3 _________________________________________________________________________________________________________

EDITORIAL BOARD

Newsletter Editors » John Kenneth Felter » Sidney Kanazawa Web Editors » Maria-Vittoria "Giugi" Carminati » Camalla Kimbrough » Katie L. Dysart » Andrew Flake

Vice Chair » James A. King Committee Cochairs » Hon. J. Michelle Childs » Ian H. Fisher » Ronald L. Kammer Staff Editor » Darhiana Mateo Téllez

The views expressed herein are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).

ABA Section of Litigation Trial Evidence Committee http://apps.americanbar.org/litigation/committees/trialevidence

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