Cleveland Law Library Weblog

Tips for 'Background Checks' on Experts

Robert Ambrogi, Esq. has issued a good article with tips on how to run a 'background check' on experts you may want to retain or need to cross-examine. In addition to using some common Internet tools, depending on the type of expert involved, Ambrogi recommends: checking networking sites and corporate records from EDGAR, NASD and others; searching archived Internet pages using the Wayback Machine; searching public records in certain free and fee-based databases; validating social security numbers; confirming professional credentials through a number of resources; searching online dockets; checking for published works; and tracking expert witness rulings with The Daubert Tracker. The Cleveland Law Library has prepared a good FAQ on how to use, find and pay experts, as well as a comprehensive Public Records FAQ that includes information on how to find licensure information for various professions, including doctors, attorneys, accountants and stockbrokers.

Summit County Judge Admits Polygraph Exam of Rape Suspect

State v. Sharma (May 11, 2007), Case No. 06-09-3248, (Order on Defendant's Motion to Admit Polygraph Examination and to Dismiss):  Summit County Common Pleas Court Judge Judith Hunter ruled that a defendant in a rape case may introduce his polygraph examination as evidence, even though the prosecutor did not stipulate to its admission.  Prior Ohio case law held that lie detector tests are only allowed if both the prosecutor and the defendant stipulate that it may come into evidence.  See State v. Souel (1978), 53 Ohio St.2d 123.  Judge Hunter found that, "Given the advancements in polygraph testing since 1978, this court finds that the Sixth Amendment and the Fourteenth Amendment warrant the admission of non-stipulated polygraph evidence, in this limited situation, in which the trial court has independently found that the prooffered polygraph is reliable under Evid.R. 702 and only when the polygraphist is subject to cross-examination, and where limited jury instructions are utilized, as required in Souel . 

See Judge OKs Lie Detector Tests in Sex Case by James Ewinger, The Plain Dealer, May 16, 2007. 

Settlement Terms Not Admissible to Prove Mitigation

This post is courtesy of Jack Sargent.

Stockman v. Oakcrest Dental Center (Mar. 16, 2007), SIxth Circuit Case No. 05-1518:  In a case of first impression, the U.S. Sixth Circuit Court of Appeals held that a proposed settlement agreement was not admissible to prove or disprove mitigation of damages.  The plaintiff sued defendant for age discrimination.  In a letter, the defendant offered to re-hire plaintiff.  Plaintiff wrote back, saying he accepted the offer, but that certain discriminatory conditions of employment had to be addressed, as well as his claims for backpay.  The plaintiff's letter was taken as a counteroffer, so defendant withdrew its offer.  The plaintiff wanted to introduce the letters at trial in order to rebut defendant's evidence that the plaintiff failed to mitigate his damages.  The district court found the letters admissible, because they fell under Evid.R. 408's "other purpose" exception.  The Sixth Circuit reversed, because Evid.R. 408  states that evidence of settlement negotiations are not admissible to show the amount of damages.  Mitigation, or lack thereof, is relevant to the amount of damages. 

The dissent asserts that when evidence of settlement is permitted solely as rebuttal to evidence of lack of mitigation, then there is definitely "another purpose" involved.  The dissent stated that majority's holdings went against the weight of federal court authority.   

Second Public Comment Period on Proposed 2007 Ohio Rule Changes

The Ohio Supreme Court issued for the second public comment period Proposed 2007 Amendments to the Ohio Rules of Civil Procedure (Rules 10 and 86), Ohio Rules of Criminal Procedure (Rules 10, 43 and 59) and Ohio Rules of Evidence (numerous - to incorporate gender neutral language).  Comments are due by March 7, 2007. 

The proposed rules clarify what is good cause for an extension of time for an affidavit of merit in a medical malpractice case under  Civ. R. 10(D)(2).  The rules also allow for the use of videoconferencing in criminal cases.  Crim R. 10 and 43. 

See our prior post:  Proposed Ohio Civil, Criminal and Evidence Rules ( re. first public comment period). 

Ohio Supreme Court Holds Dead Woman's Statement Admissible

In State v. Stahl, 2006-Ohio-5482, the Ohio Supreme Court held that a testimonial statement by a person who later died is admissible.  The statement in question was a woman telling a hospital nurse that she had been raped.  The declarant later died due to causes unrelated to the rape.  The Supreme Court  held, "(1) it is the expectation of the person making a statement that determines whether or not that statement is “testimonial” in nature, and (2) the intent of a questioner who evoked a declarant's statement is relevant to the admissibility of the statement only if the questioner's intent could affect a reasonable declarant's expectations."  Supreme Court Opinion Summaries 11/8/06

Proposed Ohio Civil, Criminal and Evidence Rules

The Ohio Supreme Court has published Proposed Amendments to Ohio Civil, Criminal and Evidence Rules.  The Court will accept public comments until November 8, 2006.  The rule revisions include rules regarding video conferencing in criminal cases (Crim.R. 10, 43); numerous changes to criminal discovery rules (Crim.R. 16); and changes concerning the affidavit of merit in medical malpractice cases (Civ.R. 10(d)(2)).  Numerous evidence rules are changed to incorporate gender neutral language. 

New Court Rules Effective July 1, 2006

Amended Ohio Civil Rules, Criminal Rules, Evidence Rules, Juvenile Rules and Traffic Rules effective July 1, 2006 are posted on the Ohio Supreme Court's website.  Go to:  Ohio Rules of Court

Government Agencies Pressure Companies to Waive Attorney Client Privilege

Government agencies, such as the SEC, often pressure companies to waive their attorney-client privilege, in order to aid  investigations of Enron-type scandals.  Waiving the privilege is a good indicator of cooperation, and will merit a reduced sentence under the sentencing guidelines.  Critics feel that company employees will withhold information from their attorney, for fear that the corporation will be induced to waive the attorney-client privilege.  See Attorney-Client Privilege Comes Under Attack by Agustina Guerrero, Tampa Bay Business Journal, Jan. 20, 2006.

Legislation in the 109th Congress Affecting Federal Rules of Practice and Procedure

Legislation Affecting the Federal Rules of Practice and Procedure, 109th Congress summarizes bills, both passed and pending in the 109th Congress, first session, which affect the Federal Rules of Practice. 

Recent Opinions Address Municipalities' Attorney-Client Privilege

A Sixth Circuit opinion decided this September found that when a city employee consults with the city attorney, the attorney client privilege belongs to the municipality, not the city employee. In Ross v. City of Memphis (6th Cir. 2005), 423 F3d 596, police officer Ross sued the city and the police director for race discrimination. The police director, Crews, asserted the defense of qualified immunity, based on advise he had received from the city attorney. The court ordered Crews to disclose the discussions with the attorney because Crews waived the attorney-client privilege by asserting the qualified immunity defense. The Sixth Circuit held that unless it is shown that Crews solicited the advice in his indiviual capacity, the privilege belonged to the municipality and Crews could not waive the privilege. See Public Interest Law by Martin A. Schwartz, New York Lawyer, Dec. 9, 2005. This article also cites an Ohio Supreme Court case, which held that the attorney-client privilege applies to state officials' confidential communications with state agency in-house counsel. See Leslie v. Ohio House Finance Agency (2005), 105 Ohio St. 3d 261.