Trial Practice

By Susan K. Eggum

CHAPTER 22

TRIAL PRACTICE

Michael H. Simon

B.A., University of California at Los Angeles (1978); J.D., Harvard Law School (1981); member of the Oregon State Bar since 1986; partner, Perkins Coie, Portland.

B.A., M.A., University of California at Berkeley (1976, 1977); J.D., Georgetown University (1982); member of the Oregon State Bar since 1982; sole practitioner, Portland.

The Oregon counties from which a jury pool is drawn is coordinated with the place of trial rules pursuant to LR 105-2. After the names of prospective jurors have been drawn at random from the master jury wheel, the clerk or jury commission prepares an alphabetical list of those names drawn and mails to every person a juror qualification form with instructions to complete the form and return it by mail within ten days. In the United States District Court in Oregon, the jury qualification form elicits the name, age, race, occupation, spouse's occupation, education, length of residence within the judicial district, marital status, and citizenship from each prospective juror, as well as whether he or she should be excused or exempted from jury service, has any physical or mental infirmity impairing his or her capacity to serve as a juror, is able to read, write, speak, and understand the English language, and has pending against him or her any charge for the commission of any state or federal crime punishable by imprisonment for more than one year. See 28 USC § 1869(h).

To hasten the jury selection process, some federal courts provide the litigants with copies of the completed questionnaires. These contain much of the information that litigants often need to evaluate a panel. See Edmonson v. Leesville Concrete Co., 500 US 614, 623, 111 S Ct 2077, 114 L Ed2d 660 (1991). In the United States District Court in Oregon, however, this is seldom done.

Rule 47 of the Federal Rules of Civil Procedure authorizes the court to permit the attorneys for the parties to conduct voir dire examination. In practice, however, this is usually not permitted. See, e.g., State v. Erickson, 472 F2d 505 (9th Cir 1973). The judge usually conducts voir dire, either exclusively or with only limited supplementary questioning by the attorneys. The Federal Court practice handbook will set forth the different practices of each of the District Court judges and magistrates.

Under United States District Court of Oregon Local Rule 245-2, unless otherwise ordered, the examination of trial jurors is to be conducted by the judge. Some judges of this District, however, have asked litigants, who have not consented to a trial by a magistrate, to allow the magistrate to conduct the voir dire. Counsel are permitted to submit questions which they desire to be propounded to the jurors at such time as the court allows. Id. Otherwise, questions are submitted at least three days before trial. Id.

The scope of the voir dire examination is largely within the discretion of the trial judge. Rosales-Lopez v. United States, 451 US 182, 101 S Ct 1629, 68 L Ed2d 22 (1981) (plurality opinion); Darbin v. Nourse, 664 F2d 1109 (9th Cir 1981).

Practice Tip: The failure of a trial judge to ask a specific question cannot serve as a basis for claim of error in the absence of a specific request for that question to be asked. United States v. Peterson, 475 F2d 806 (9th Cir), cert. denied, 414 US 846 (1973); United States v. Blosvern, 514 F2d 387 (9th Cir 1975) (failure to ask questions from a detailed list was not reviewable in the absence of a specific objection to the omission of a particular question).

Challenges for cause and peremptory challenges are available to counsel. The challenge for cause is narrowly confined to instances in which threats to impartiality are admitted or presumed from the relationships, pecuniary interests, or clear biases of a prospective juror. Darbin v. Nourse, 664 F2d 1109, 1113 (9th Cir 1981). The peremptory challenge, of which three are available, is more extensive in scope. The peremptory challenge serves to remove jurors who, in the opinion of counsel, have unacknowledged or potential bias. The identity of the party who has exercised a challenge for cause, or peremptory challenge, is not to be disclosed to the jury. Id.

Federal law gives litigants the right to make "challenges for cause or favor." 28 USC § 1870 (1988). Challenges for cause are authorized by § 1866(C) subsections (2) ("that such persons may be unable to render impartial jury service") and (4) ("upon a challenge by any party for good cause shown").

Under Local Rule 245-2(c), challenges for cause are taken orally in the presence of the jury. The trial court is permitted a broad discretion in its rulings on challenges for cause, and it will not be overturned lightly. Hard v. Burlington Northern R.R., 870 F2d 1454 (9th Cir 1989).

Under Rule 47(c) of the Federal Rules of Civil Procedure, the court may for good cause excuse a juror from service during trial or deliberation.

In federal court, use of peremptory challenges in civil trials is governed by 28 USC § 1870 and Rule 47(b) of the Federal Rules of Civil Procedure, supplemented by local rules and the discretion of the court.

Local Rule 245-2(d) describes the manner by which peremptory challenges are exercised.

The number of peremptory challenges allowed each party is set by 28 USC § 1870. In civil cases, each party may exercise three peremptory challenges.

In civil cases with several defendants or several plaintiffs, the district court has discretion in aligning the interests of the parties in allocating and equalizing peremptory strikes. Id. The district court may treat several parties as a single party and allow them only three challenges; or, the court may allow additional challenges if the interests of the parties are diverse. Id.; see, e.g., Fedorchick v. Massey-Ferguson, Inc., 577 F2d 856, 858 (3d Cir 1978) (court granted six peremptory strikes to plaintiff where it faced several parties with interests adverse to him); but see Goldstein v. Kelleher, 728 F2d 32 (1st Cir), cert. denied, 469 US 852 (1984) (magistrate abused discretion in allocating three peremptory strikes each to two defendants whose interests were "indistinguishable".) A district court's decision to allocate additional peremptory strikes to multiple plaintiffs or defendants will not be disturbed if the plaintiffs or defendants have "colorably different interests" from one another. Goldstein v. Kelleher, 728 F2d 32 (1st Cir), cert. denied, 469 US 852 (1984). A district court may not refuse to exercise any discretion in allowing additional peremptory strikes in a case with multiple parties. See John Long Trucking, Inc. v. Greear, 421 F2d 125, 127-28 (10th Cir 1970).

The United States Supreme Court and the Ninth Circuit have restricted the use of peremptory challenges in both criminal and civil cases. In 1986, in Batson v. Kentucky, 476 US 79, 106 S Ct 1712, 90 L Ed2d 69 (1986), the Supreme Court prohibited prosecutors from exercising peremptory challenges for the purpose of racial discrimination in criminal trials. The Court determined that if a prosecutor deliberately excludes members of a defendant's race from the jury without a race-neutral reason, the prosecutor violates the defendant's Fourteenth Amendment right to equal protection of the laws. Id., 476 US at 100. Nor may a criminal defendant exercise peremptory challenges in a discriminatory manner. Georgia v. McCollum, 505 US __, 112 S Ct 2348, 120 L Ed2d 33 (1992).

The Batson Court articulated a three-part test for determining such claims: (1) The defendant must first make a prima facie case showing that the prosecutor exercised the challenges on the basis of race; (2) providing such a showing has been made, the burden shifts to the prosecutor to come forward with a "neutral explanation" for the challenges; and (3) the district court then evaluates whether the defendant has fulfilled the burden of proof in establishing purposeful discrimination. 476 US at 96-97; see also United States v. Powers, 881 F2d 733, 739 (9th Cir 1989).

Practice Tip: The neutral explanation must be related to the particular case being tried. Powers, supra, 881 F2d 740 (quoting United States v. Chinchilla, 874 F2d 695, 697 (9th Cir 1989). For example, in United States v. Castro-Romero, 964 F2d 942 (9th Cir 1992), a prosecutor's explanation that he challenged a black juror in a sexual abuse case because he thought "that children can lie in such matters" was considered a reasonable, neutral basis for challenging the juror. On the other hand, to strike a black juror because she lives in a low-income, black neighborhood and is therefore more likely to believe the police "pick on black people" bears no nexus to the juror's approach to the particular trial and therefore violates the equal protection guaranty. United States v. Bishop, 959 F2d 820, 825 (9th Cir 1992).

The Batson restriction also applies to civil proceedings. Edmonson v. Leesville Concrete Co., 500 US 614, 111 S Ct 2077, 114 L Ed2d 660 (1991).

Practice Tip: Batson objections must occur as soon as possible, preferably before the jury is sworn. Dias v. Sky Chefs, Inc., 948 F2d 532, 534 (9th Cir 1991) (citing United States v. Thompson, 827 F2d 1254, 1257 (9th Cir 1987). The objection must also be in the proper form, i.e., counsel must request the court require the party exercising the peremptory strike to articulate a gender or race neutral explanation for the peremptory strike. Id. at 535. Counsel may request outside the hearing of the jury a "Batson hearing" in order to test the basis of opposing counsel's challenge.

The Supreme Court has also been extended the Batson rationale to defendants' challenges to ethnic discrimination. In Hernandez v. New York, 500 US 352, 111 S Ct 1859, 114 L Ed2d 395 (1991), the Supreme Court affirmed a trial court decision that allowed a prosecutor to exclude two bilingual Latin-American jurors on the basis of the prosecutor's race-neutral explanation of exercising the peremptory challenges.

The Equal Protection Clause also prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case solely because that person happens to be a man or a woman. J.E.B. v. Alabama, ___ US ___, 114 S Ct 1419, 128 L Ed2d 89 (1994).

Religious affiliation may also be included and thus may be subject to challenge. Other cognizable groups may include age, economic status, labor union membership, and sexual orientation. A recent Ninth Circuit decision concluded that a neighborhood address cannot be a basis for a peremptory challenge since the address might be an inappropriate proxy for race. United States v. Bishop, 959 F2d 820 (9th Cir 1992).

Practice Tip: To defend against an attack on a peremptory challenge, an attorney must be able to articulate a specific, individualized, non-class-based reason for a particular challenge.

A United States District Court must consist of not fewer than six and not more than 12 members and all members shall participate in the verdict, unless excused from service by the court. FRCP 48. In the United States District Court in Oregon, the jury must consist of six members. Alternate jurors are no longer picked. The general practice is to seat more than six jurors, and typically 7 or 8. All jurors participate in the verdict. FRCP 47 and 48, and Committee Notes thereto. LR 245-1.

Practice Tip: A jury of six poses the risk of a mistrial if one of them becomes ill or unable to continue. However, increasing the number of jurors increases the possibility of a mistrial due to a "holdout" by a single juror, because all jurors must deliberate. Generally, the longer the trial estimate, the greater the number of jurors that will be seated. Of course, the parties may stipulate otherwise, i.e., that the verdict need not be unanimous; and/or that only six (or even fewer) jurors deliberate.

The purpose of closing argument is to draw together all the facts and to present the theories of the litigants so that the fact finder may analyze, evaluate, and apply evidence to reach a proper decision. Closing argument serves to sharpen and clarify the issues for resolution by the trier of fact. Closing arguments are presented in the same order as opening statements. Appropriate use should be made of demonstrative exhibits during closing.B. The Law

1. Limitations

a. (§ 22.24) "Golden Rule" arguments

The "Golden Rule" has been defined as a suggestion to the jury by an attorney that the jurors should do unto others, normally the attorney's client, as they would have others do unto them. United States v. Ontiveros, 902 F2d 41 (table, text in WL), 1990 WL 56821 at *5 (9th Cir April 30, 1990). Most courts condemn such an argument because it asks the jury to depart from neutrality and base its decision on emotional and personal interest. See Spray-Rite Service Corp. v. Monsanto Co., 684 F2d 1226, 1246 (7th Cir 1982) (citations omitted); see also Werner v. Upjohn Company, 628 F2d 848, 854 (4th Cir 1979), cert. denied, 449 US 1080 (1981); Leathers v. General Motors Corp., 546 F2d 1083, 1086 (4th Cir 1976) (Widener, J., dissenting); Annotation, Propriety and Prejudicial Effect of Attorney's "Golden Rule" Argument to Jury In Federal Case, 68 ALR Fed 333.

Some federal courts, however, have held that when an attorney urges the Golden Rule to assist in deciding liability, rather than damages, it is unobjectionable. Stokes v. Delcambre, 710 F2d 1120, 1128 (5th Cir 1983). The attorney must properly object, or the right to complain about Golden Rule rhetoric may be lost. Roios v. Richardson, 713 F2d 116, 118 (5th Cir 1983). Contra Werner v. Upjohn Co., 628 F2d 848, 854 (4th Cir 1979).

b. (§ 22.25) Arguments outside the record

Counsel is not permitted to allude to information that is unsubstantiated by the evidence, in particular to non-record facts which go to the merits of the case. United States v. Gray, 876 F2d 1411, 1417 (9th Cir 1989), cert. denied, 495 US 930, 110 S Ct 2168, 109 L Ed2d 497 (1990); United States v. Varqas-Rios, 607 F2d 831, 838 (9th Cir 1979); United States v. Barron, 575 F2d 752 (9th Cir 1978).

Courts give trial attorneys latitude to deviate from the record, where counsel's reference is to "matters of common public knowledge based on ordinary human experience," or matters of such notoriety that judicial notice is appropriate. United States v. Candelaria, 704 F2d 1129, 1132 (9th Cir 1983).

Courts also permit an attorney to deviate from the record to make illustrations, analogies, or lines selected from poetry and literature. See United States v. Walker, 613 F2d 1349 1355 (5th Cir), cert. denied, 446 US 944 (1988).

c. (§ 22.26) Personal beliefs

It is improper for an attorney to express his opinions of the defendant's guilt or his belief in the credibility of a particular witness. United States v. Williams, 989 F2d 1061 (9th Cir 1993); United States v. McKoy, 771 F2d 1207, 1210-11 (9th Cir 1985). LR 110-3 requires counsel to comply with the Oregon Disciplinary Rules. DR 7-106(c)(4) prohibits counsel from commenting on the credibility of witnesses. There are exceptions to this general prohibition.

d. (§ 22.28) Wealth of the parties

The subject of a person's wealth usually arises in the context of civil cases. Courts generally prohibit comments upon the wealth of either of the parties. Draper v. Airco. Inc., 580 F2d 91, 96-97 (3d Cir 1978); cf Garcia v. Sam Tanksley Trucking Inc., 708 F2d 519 (10th Cir 1983) (counsel's comparison of defendant's wealth to plaintiff's property held improper, but not prejudicial where wealth was already in evidence.)

There are exceptions. In cases involving punitive damages, where information regarding the defendant's financial resources is relevant in order to render a judgment that will adequately punish and deter, counsel may appropriately refer to those resources in closing. Rodqers v. Fisher Body Div.. Gen. Motors Corp., 739 F2d 1102, 1105, (6th Cir 1984), cert. denied, 470 US 1054 (1985); Associated Business Tel. Systems Corp. v. Greater Capital Corp., 729 F Supp 1488 (D NJ 1990).

e. (§ 22.29) Inflammatory appeals to emotion or prejudice

Arguments designed to appeal to racial or local prejudice are improper. McFarland v. Smith, 611 F2d 414, 419 (2d Cir 1979). Thus, an attorney cannot stir community antagonism against out-of state residents and corporations simply because they are not local. United States v. Williams, 989 F2d 1061, 1072 (9th Cir 1993) (prosecutor's remarks that the jury should "tell [the defendant] to take his keys and send them back to Denver" and "tell these defendants that we do not want crank in Montana" and tossing a set of keys at the defendant were improper because they were an attempt to capitalize on the parochial inclinations of the jurors with respect to an out-of-state defendant).

An argument calculated to mislead the jury, or one which inflames their passion or prejudice, creates the danger of reversible error. Caldwell v. Mississippi, 472 US 320, 105 S Ct 2633, 86 L Ed2d 231 (1985). In civil trials, the standard is whether counsel's statements so permeated the trial as to lead to the conclusion the jury was necessarily influenced by passion and prejudice in reaching its verdict. Kehr v. Smith Barney, Harris Upham & Co., Inc., 736 F2d 1283, 1286 (9th Cir 1984).2. Permitted arguments

a. (§ 22.30) Inferences and conclusions

Counsel may argue reasonable inferences from the record, and has wide latitude to draw conclusions from established facts. See United States v. Laurins, 857 F2d 529, 539 (9th Cir 1988), cert. denied, 492 US 906, 109 S Ct 3215, 106 L Ed2d 565 (1989); United States v. Lester, 749 F2d 1288, 1301 (9th Cir 1984).

b. (§ 22.31) Exhibits, illustrations, and analogies

During summation, counsel may use any exhibits offered and received in evidence, as well as graphic aids. If counsel can say it, counsel can show it. Verbal illustrations add color to the argument and are accepted modes of persuasion. Further, the attorneys' use of analogies, word pictures, or lines selected from literature to illustrate a point is permissible and effective. See United States v. Walker, 613 F2d 1349, 1355 (5th Cir), cert. denied 446 US 944 (1980).

c. (§ 22.32) Law

An attorney may argue favorable points of law in closing, and may discuss anticipated jury instructions in support of legal arguments. The attorney may refer to applicable law and may relate legal principles to the facts of the litigated case. However, the attorney may not read the law from the state code. Furthermore, an attorney may not read extended passages from appellate court decisions in his argument to the jury. Wilson v. Kemp, 777 F2d 621 (11th Cir 1985), cert. denied, 476 US 1153 (1986).

d. (§ 22.33) Failure of adverse party to testify or produce evidence

Where a witness has information about the matter on trial and is particularly available to one side in a case but is not called by that side, courts generally allow the adverse party to comment on the fact that the witness has not been produced. Auto Owners Ins. Co. v. Bass., 648 F2d 764, 769 (11th Cir 1982). In civil litigation, the same rule applies when a party as opposed to a witness, does not take the stand. Similarly, courts permit comment when a important piece of evidence within the control of the adverse party is not produced.

e. (§ 22.34) Calls for action

Courts frequently approve of counsel's invitation to the jury in closing to "send a message" to a particular party, or to a larger community as a deterrent to similar conduct. See Emery-Waterhouse Co. v. Rhode Island Hosp. Trust Nat'l. Bank, 757 F2d 399, 410-11 (1st Cir 1985).

3. Procedural issues

a. (§ 22.35) Objections

During closing argument, a competent attorney must be alert to objectionable material, and must clearly present effective and timely objections. To do so, counsel must assert the objection at or near the time that an offensive comment is made by the opposing counsel.

If the attorney does not raise the objection at trial, the decision will be reviewed only for plain error. United States v. Molina, 934 F2d 1440, 1444 (9th Cir 1991). The decision will only be reversed if, viewing the error in the context of the entire record, the impropriety "seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings, or where failing to reverse a conviction would amount to a miscarriage of justice." United States v. Necoechea, 986 F2d 1273 (9th Cir 1993).

b. (§ 22.36) Scope of rebuttal argument

Usually the party with the burden of proof has the opportunity for rebuttal, but is barred from injecting new matter during the rebuttal argument. Except in unusual circumstances, a rebuttal argument is to be just that, and courts confine the attorney to only those topics raised in his opponent's remarks.

c. (§ 22.37) Timing of arguments

FRCP 51 provides that the court may instruct the jury before or after closing arguments are made. The rationale for allowing the trial court discretion to instruct the jury before arguments is to give counsel an opportunity to present closing arguments in light of the exact language of the court's instructions.

IX. TRIAL MOTIONS

A. (§ 22.39) Motion to Amend Pleadings to Conform to Evidence

A party may amend its pleadings with leave of the court at any time, including during trial. FRCP 15. Moreover, FRCP 15(b) provides, in part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.

Moreover, FRCP 15(b) further provides that if evidence is objected to at trial on the ground that it is not within the issues raised by the pleadings, the court may allow the pleadings to be amended and shall do so freely unless the objecting party satisfies the court that the admission of this evidence would prejudice the objecting party in maintaining that party's action or defense upon the merits. The court may also grant a continuance of the trial in order to enable the objecting party to meet the new evidence. FRCP 15(b).

A trial court abuses its discretion if it denies a motion to amend the pleadings to conform to the evidence unless the opposing party demonstrates prejudice. United States v. SCI, Inc., 828 F2d 671 (11th Cir 1987); Corsica Livestock Sales, Inc. v. Sumitomo Bank of California, 726 F2d 374 (8th Cir 1983). Amendments to conform the pleadings may be made after the close of the evidence, United States v. SCI, Inc., supra, after a verdict, or even on appeal. Brandon v. Holt, 469 US 464, 105 S Ct 873, 83 L Ed2d 878 (1985).B. Motion for Judgment as a Matter of Law (formerly Directed Verdict)

1. Generally (§ 22.40)

As of December 1, 1991, the federal rules no longer refer to motions for directed verdict or motions for judgment notwithstanding the verdict. Instead, what was previously called a motion for directed verdict is now referred to as a motion for judgment as a matter of law, and what previously was called a motion for judgment notwithstanding the verdict is now referred to as a renewal of motion for judgment as a matter of law. FRCP 50. Notwithstanding this shift in terminology, however, both the procedural and the substantive requirements for these federal motions remain unchanged. For a discussion of a renewal of motion for judgment as a matter of law, which is raised post-trial, see Chapter 27, infra.

2. Made Against Whom; Which Issues (§ 22.41)

A motion for judgment as a matter of law may be entered against either a plaintiff or a defendant in a jury trial and with respect to issues or defenses that may or may not be wholly dispositive of a claim or defense. FRCP 50(a)(1) and Commentary to the 1993 Amendments.

3. Timing (§ 22.42)

A motion for judgment as a matter of law may be made during a jury trial after "a party has been fully heard on an issue." FRCP 50(a). Accordingly, a party may move for judgment as a matter of law either at the close of the opponent's case, at the close of all evidence, or both.

Practice Tip: Unless a party moves for judgment as a matter of law at the close of all the evidence, that party may not renew that motion after trial. FRCP 50(b). For example, it is insufficient for the defendant merely to move at the close of the plaintiff's case if the motion is not granted. In order to preserve the right to renew that motion after trial, and after a verdict has been returned, the moving party must have moved at the close of all of the evidence. See Chapter 27, infra; see also Farley Transp. Co. v. Santa Fe Transp. Co., 786 F2d 1342 (9th Cir 1985).

A motion for judgment as a matter of law "shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment." FRCP 50(a)(2). The specific grounds upon which the motion is made must be presented at the time of the motion. In addition, the motion may be made either orally or in writing.

If the plaintiff "does not present enough evidence within his case in chief to support a reasonable finding in his favor, a district court has a duty to direct a verdict against him." Chisholm Brothers Farm Equipment Co. v. International Harvester Company 498 F2d 1137, 1139-40 (9th Cir 1974); see also Westinghouse Electric Corporation v. CX Processing Laboratories, Inc., 523 F2d 668, 673 (9th Cir 1975). Although a plaintiff is entitled to benefit from all reasonable inferences to be drawn from the evidence, in order to avoid a directed verdict the non-moving party is required to present "substantial evidence" that could support a finding by reasonable jurors in its favor. Westinghouse, 523 F2d at 673; see also Landes Construction Co., Inc. v. Royal Bank of Canada, 833 F2d 1365, 1371 (9th Cir 1987). "Substantial evidence is more than a mere scintilla." Id., quoting Consolidated Edison Co. v. NLRB, 305 US 197, 229, 59 S Ct 206, 83 L Ed 126 (1938).

Although not specifically authorized by the FRCP, a federal court has the inherent power to grant a motion to strike evidence that has been introduced at trial. See Balchunas v. Palmer, 151 F2d 842, 845 (2d Cir 1945). A motion to strike may be useful, for example, when the witness' answer goes beyond the scope of the question or when it is later revealed that the testimony was based on hearsay.

Upon motion, the court in its discretion may allow a party who has rested to reopen its case and present further evidence. Gile v. Duke, 5 F2d 952, 953 (9th Cir 1925).

A motion for mistrial may be made at any time during a trial when misconduct or an irregularity occurs. Beck v. Wings Field, Inc., 122 F2d 114 (3d Cir 1941). If an objection to such misconduct or irregularity is not timely raised, however, it may be waived.