The court addresses the application of Rule 26(b)(4)(D) (one independent expert per issue per side) when a percipient witness also testifies as an expert.

Plaintiffs sued for personal injury and wrongful death arising out of an automobile accident. At trial their attorney elicited from the police accident reconstructionist his conclusion as to the defendant’s speed. When the plaintiffs called their own expert the trial court allowed his testimony on a different issue but restricted or limited it as to speed because the officer had already testified as an expert. Defendants won the jury’s verdict; plaintiff’s appealed.

The Court of Appeals reverses and remands (though at the end it affirms a couple of rulings relevant on remand that we won’t cover here).

Plaintiffs first argued that an “actor or viewer” witness, to use the court’s language, can’t be considered an “expert.” The court concludes that such a witness can be and was here (the defendants apparently did not dispute that the officer was qualified to give expert testimony).

The question becomes whether he was an “independent” expert. The Committee Comment to the rule clearly defines an “independent” expert as a “retained” expert and not a percipient witness. The Court of Appeals decides that “independent” is nevertheless ambiguous but that because earlier  decisions have relied on these Committee Comments it will as well “although no direct authority requires us to do so.”  (The court is of course correct in that regard; we have long complained about rule comments, as in this case, which we don’t know why the court here didn’t cite.) So it concludes that the officer was not an “independent” witness and therefore that the rule doesn’t bar his testimony.

The defendants fall-back argument was that since the officer had already testified on the subject, speed evidence from the plaintiff’s expert would be cumulative. But their expert used a different method to arrive at his opinion and had the car traveling at different speed than the officer did.

The reason for publishing this otherwise fact-intensive case is apparently its decision that the single-publication rule applies to internet posts. That’s the problem.

It seems that Sarah, or Sarah and husband David, posted defamatory statements about the parenting habits of Mindi, David’s ex., and MIndy’s new man, Jeremy. The internet seems to be replacing television – even “reality tv” – as the go-to source for sordid melodrama. Anyway, Mindi and Jeremy sued Sarah and David, who alleged the statute of limitations, their posts having been made over one year before. The trial court didn’t buy it, the case went to trial, and the plaintiffs won. Defendants appealed, again arguing the statute.

The Court of Appeals affirms.

One of the defendants’ arguments was the discovery rule, which the court disposes of briefly on factual grounds.

The other argument was that the defamatory information had been republished within one year. The doctrine of republication is an exception to the single-publication rule – the statutory rule (12-651) that defamation in a book, movie, etc. gives rise to a single cause of action no matter when or how many copies/showings/etc. there are. But a new version or edition or issuance — i.e., a “republication” – is a new defamation that starts the clock again.

The court eventually finds, for factual reasons, that that’s what happened here: the defendants’ rehashing and embellishment of their allegations in the posts’ comments threads amounted to republication.

First, though, the court analyzes the question of whether the single-publication rule applies to internet posts. It quotes the statute, discusses the history and reasons for the rule, and cites some federal cases. “We agree with this reasoning from these other jurisdictions and conclude the single publication rule applies to Internet publications.”

See the problem? The defendants argued an exception to the rule – in other words, they apparently agreed that the rule would otherwise apply to their post. The plaintiffs surely didn’t dispute that. There seems to have been no reason for the parties to brief that issue; the opinion does not mention that they did. Did the court really adopt as the main issue for legal analysis one that hadn’t been briefed or argued? Did it really present, in the guise of the resolution of a legal dispute, what was in truth just some judge’s or law clerk’s or, perhaps, staff attorney’s idea of what the law ought to be? Did it really reach out for a trendy issue that wasn’t properly there?

We don’t know. We didn’t see the briefs. Perhaps there truly was some reason, that doesn’t appear in the opinion, not to do a “we assume without deciding.” Or perhaps the court doesn’t quite consider its conclusion a “holding” (though there is nothing here to warn mere lawyers of that, and in that case there wasn’t much reason to publish this). We would be less suspicious if this were the first time (e.g., here, though if you look through these blogs you’ll find other examples). Its not that the court’s analysis is wrong – off the top of our heads we’ve no reason to think so. But if judges aren’t constrained by the actual issues, if a case can hold whatever it inspires them to write about, then our theory of appeals is just a scheme to fool the rubes.

(link to opinion)

Bailiff issues – the careless, the chatty, the controlling, the prejudiced – we have always with us. Traditionally, at least, the problem bailiffs were routinely found in the courtrooms of the problem judges (though we don’t know this judge and have no idea whether  that’s true here).                  .

After a jury trial – 12 days, 24 witnesses, 168 exhibits –  produced an unsatisfactory result American hired a PI to interview jurors. He got affidavits from two. Turns out that when sent to deliberate – in the middle of Friday afternoon before a three-day weekend – the jurors, who had earlier wondered how long the trial would last, asked the bailiff how long deliberations typically take. She told them that “an hour or two should be plenty.” The affidavits also claimed that most jurors didn’t consider the evidence,  just wanted to go home, etc. American moved for new trial; the trial court denied it. The Court of Appeals reverses.

The court first rules that although the jurors’ thoughts and attitudes are inadmissible under Rule 606 the bailiff’s comment could be considered, as “extraneous information that could have prejudiced the jury.”

The court next holds, citing Perez (1997), that a bailiff communication doesn’t necessarily warrant new trial. Though bad if it was improper and prejudicial, the communication is okay if concerns an “administrative detail” or an “innocuous matter,” or if it accurately answers a question. But if it doesn’t, or if you can’t tell, or if it violated an “essential right” then a new trial can be in order.

The trial court can hold an evidentiary hearing to determine these things. That’s what the majority ends up deciding that this trial judge should have done. The dissent points out that CSK didn’t dispute what the bailiff said and therefore feels that no hearing was necessary (and that finding what happened innocuous was within the trial court’s discretion; the majority goes out of its way to mention facts to the contrary and of course that may be the point of its opinion – finding that you should have held a hearing is a way to reverse a discretionary ruling the appellate judges don’t agree with).

So why did the majority feel that a hearing was necessary? It doesn’t hesitate to conclude that length of deliberations is not a permitted communication and is of procedural importance. But the majority’s question is whether this improper communication was prejudicial. In other words, did the jury think the bailiff’s remark a general comment or did they think it applied specifically to their case? The affidavits didn’t, in the majority’s view, provide enough information to answer that.

What about the problem that the trial took place three years ago? Its for the trial court to determine whether an evidentiary hearing at this point is feasible. If not, says the majority, the court must order a new trial (apparently on the law cited above that if you can’t tell then its prejudicial).

Finally, the court discusses the scope of the hearing. The thrust appears to be that although under Rule 606 you can’t ask jurors how something actually affected their thinking you can find out things around the edges – when it happened, where it happened, how it happened, who heard it, etc.

So, one of two things will happen. Either the trial court will take the majority’s broad hints, reverse himself, and grant a new trial, using the excuse that a hearing is no longer feasible. Or he will call the jurors back to court to give testimony, the two who gave affidavits will have their recollections refreshed by them and emphasize the egregiousness of the circumstances, the rest won’t remember or won’t care or won’t show, and the judge will grant a new trial.  What we wonder is whether the bailiff will face any consequence for scuttling an expensive trial with a careless – or worse – remark. Well, no, we don’t wonder, bureaucracies being the way they are.

(link to opinion)