EVIDENCE

SECTION 2B--KNAPP

SPRING, 1995

FINAL EXAMINATION

INSTRUCTIONS

1. This is a three hour exam. There are three parts of the exam. Each part is weighted equally. You should answer all three parts, and all questions in each part.

2. All three parts of the exam are based on the City of Lilly v. Best Brick & Masonry fact scenario. The fact scenario for this case is reprinted below.

3. Part One of the exam consists of three essay questions.

3. Part Two consists of ten short-answer questions. WRITE THE QUESTION NUMBER AND YOUR ANSWER IN YOUR BLUEBOOK, NOT ON THIS EXAM. You should be able to answer each question with one or two SHORT sentences.

4. Part Three of the exam is based on the document handed out in class. That document is reprinted immediately following Part Three. Part Three consists of three questions.

5. This is an open book exam. You may refer to any written materials you wish while writing your answer.

6. In analyzing the questions on this exam and thinking about the potential evidentiary problems, please assume that:

a. This case will be tried before Judge Willa Hartack, a notorious stickler for adherence to the Federal Rules of Evidence. You know that Judge Hartack will take every evidentiary objection very seriously and apply the rules of evidence rigorously; and,

b. There are no issues involving jurisdiction, Constitutional law, civil procedure, contract law, Rule 803(24), presumptions, burdens of proof, judicial notice, or attorney-client privilege lurking in these questions.

FACT SCENARIO: CITY OF LILLY V. BEST BRICK & MASONRY

[This information is identical to the material distributed in class.]

Martin Best is the owner and sole shareholder of the Best Brick & Masonry Company of Boston, Massachusetts. The City of Lilly is a small town in the southwestern part of the state. Since the early 1980's, Lilly has made significant efforts to draw tourists to the town. Lilly is a picturesque town, with a number of antique stores and bed and breakfast inns. Two and a half years ago, the Lilly city council decided, as part of their effort to promote tourism, to resurface the main street (which is called "Main Street") with paving bricks rather than concrete or asphalt. The city council solicited bids from several different companies, and eventually decided to purchase the paving bricks from Best Brick & Masonry. The city repaved Main Street with the bricks, but has had severe problems each of the last two winters with bricks cracking and flaking.

The Lilly city council tried to reach a settlement with Best, but Best insisted that the problems were the result of improper installation and maintenance rather than any defect in the bricks. Dissatisfied with the work done by their regular city attorney, the Lilly city council decided to hire you to represent the city. You believe that Lilly has two principal claims against Best. The first is a cause of action for breach of contract, and is based on the city's claim that the paving bricks were not weather-resistant, as Best promised they would be.

The second cause of action is for fraud. During discovery, you uncovered evidence leading you to believe that Best made knowing misrepresentations to the city about the paving bricks. You believe that Best paid Franklin P. Roth, a private contractor who did paving work for the town of Walnetta, Nebraska, to tell the Lilly city council that Walnetta had used Best bricks without any problem. In fact, Walnetta experienced many of the same problems as Lilly did.

PART ONE

While preparing for trial, you have encountered the following evidentiary problems. Remember that this case is being tried in front of Judge Willa Hartack, a notorious stickler for strict adherence to the Federal Rules of Evidence:

1. (Ten Points) One of the witnesses that you wish could testify for you during the trial is Norton McTavish. Unfortunately, Mr. McTavish died last week. While he was living, Mr. McTavish worked for Ventura Testing, a company that did testing work for Best Brick & Masonry. Mr. McTavish tested the C-2 bricks and sent a written report to Best Brick which stated that the bricks could be used to pave streets in northern climates. You discovered, however, that Mr. McTavish lied in his report. You met with him, and he wrote the following statement:

"I know that it was wrong to do, and I'll probably be sued or arrested, but I lied in my report about the C-2 bricks. I said the bricks could be used to pave streets in the north, but the fact was that my tests showed that harsh winter conditions would cause the C-2 bricks to flake and crack. After I told him about the test results, Marty Best told me to falsify my report. I'm sorry for what I've done."

You would like to introduce the statement at trial, but you realize there is a potential hearsay problem. What arguments can you make to persuade Judge Hartack to overrule any hearsay objection? Are those arguments likely to be successful?

2. (Ten Points) You expect that Purdy Goode will testify, and you would like to impeach him with his only past conviction. In 1987, Mr. Goode was convicted of burglary. He was sentenced to eighteen months in prison, but was released after serving only nine months. Goode's 1987 burglary conviction stemmed from an incident that related to his work at Best Brick. Goode broke into the offices of one of Best's customers (Connelly Contracting) and stole files documenting problems Connelly Contracting had had with some of Best's products. Goode also stole computer equipment and cash kept in the office, to make the crime appear to be a routine burglary and divert suspicion from Best. You expect that Best's attorney will object to your use of the conviction for impeachment purposes. What arguments can you make to persuade Judge Hartack to overrule an objection that the conviction is not admissible for impeachment purposes? Are these arguments likely to be sucessful? If you succeed in getting the conviction admitted for impeachment purposes, what facts about the conviction will you be able to tell the jury?

3. (Ten points) You would like to have Nick Kapella testify as a witness. Mr. Kapella works for a contractor in Lilly; he is not a city employee. In April of 1993, Mr. Kapella met with Chris Adair at Best Brick headquarters in Boston. Kapella wanted to talk with Adair about future purchases of the C-2 brick for use in private construction projects. If allowed to testify, Kapella will state that he had a conversation with Adair in Adair's Boston office. According to Kapella, he said to Adair, "Look, we are thinking about using the C-2 brick, but we know that the city has had some problems. I think you people knew about problems with the bricks before you sold them and are now trying to cover up everything." Kapella says that Adair responded, saying "I'm the person in charge with investigating the problems with the C-2, and all I can say is that I don't have any comment about that." You know that there are potential hearsay problems with Kapella's testimony, and you know those problems are compounded by Best's assertion that Adair had been assigned to a project involving engineering problems in a Best plant in Costa Rica and relieved of any responsibilities for investigating problems with the C-2 two weeks before the alleged conversation. What arguments can you make to Judge Hartack to persuade her to overrule an expected hearsay objection and admit Kapella's testimony? Are these arguments likely to be successful?

PART TWO

At the trial, several different witnesses testified during the plaintiff's case-in-chief and the defendant's case-in-chief. These ten questions consist of ten objections made during testimony at trial. Each question is worth three points. Please answer each question by explaining in ONE OR TWO SHORT SENTENCES how Judge Hartack should rule on the objection made, and why the Judge should make that ruling. Remember that this case is being tried in front of Judge Willa Hartack, a notorious stickler for strict adherence to the Federal Rules of Evidence:

The first witness to testify for the plaintiff is Lesley Bryan, the president of the Lilly city council. During her testimony, Ms. Bryan states that she first talked with Martin Best in January of 1994. As she is about to testify about what Mr. Best said, defense counsel objects, "Hearsay!" How should the judge rule? Why?

Later during her direct examination, Ms. Bryan is asked about a conversation she had with Martin Best during December of 1994. Ms. Bryan states that she talked with Best about repaving Main Street in exchange for a release from Lilly of any claims the city had made against Best. Before she can testify further, defense counsel objects, "Irrelevant!" How should the judge rule? Why?

During direct examination, Ms. Bryan testifies that Lilly first had a serious problem with cracking and flaking of bricks during November of 1993. On cross-examination of Ms. Bryan, counsel for defendant Best asks "Isn't it true that at a barbecue last week you told your brother-in-law that the city first had problems with the bricks in December of 1993?" Counsel for plaintiff Lilly objects, "Hearsay!" How should the judge rule? Why?

Plaintiff Lilly later calls Dorian Cardiff, a long time Lilly resident, to the stand. Mr. Cardiff testifies that he walks Main Street twice a day, every day, and has done so for seventy years. Cardiff is about to testify that he has never seen Main Street in worse condition than it is now when defense counsel objects, "Inadmissible opinion!" How should the judge rule? Why?

On direct examination, Cardiff states that the C-2 bricks began to crack and flake during November of 1993. On cross-examination, defense counsel attempts to introduce Cardiff's deposition statement that the problems didn't begin until November of 1994. Defense counsel explains that the statement is offered to prove that the problems began in November of 1994. Plaintiff's counsel objects, "Improper impeachment! Hearsay!" How should the judge rule? Why?

Plaintiff next calls Dr. Donald Mack to the stand. Dr. Mack is a geological chemist who is prepared to testify about the composition of the C-2 bricks and the causation of the cracking and flaking of the bricks. Dr. Mack admits that the techniques he has used have not yet been generally accepted in the relevant scientific community, but he explains his work has been tested, published, reviewed by peers, and found to be scientifically valid. Before he can continue, defense counsel objects, "Inadmissible expert opinion. The witness admits his techniques are not generally accepted!" How should the judge rule? Why?

During the defense's case-in-chief, counsel for Best calls Paddy Mulrooney to the stand. Mulrooney testifies that from 1992 through 1994 he was responsible for gathering information about customer complaints, and no one in the company had received any "serious" complaints about the C-2 brick. On cross-examination, counsel for Lilly asks Mulrooney "Sir, isn't it true that six weeks ago, Martin Best offered you a promotion to Vice President effective July 1?" Counsel for Best objects, "Irrelevant! Mr. Mulrooney's job performance is not an issue in this case!" How should the judge rule? Why?

On redirect of Mulrooney, counsel for Best attempts to have Mulrooney testify about a statement Mulrooney made to a newspaper reporter last month that Best received no complaints about the C-2 brick during 1992 through 1994. Counsel for Lilly objects, "Hearsay!" How should the judge rule? Why?

Counsel for Best calls Dr. Finley Prufrock, an expert in geological chemistry, to testify about the causation of the cracking and flaking of the C-2 bricks in Lilly. Dr. Prufrock testifies that it is common for experts in his field to obtain information from local observers about the condition of bricks at various points in time in order to make an assessment about the dates particular problems occurred. Dr. Prufrock is about to testify about what local observers told him. Counsel for Lilly objects, "Hearsay!" How should the judge rule? Why?

During the direct examination of Martin Best, defense counsel has a brick marked as an exhibit and then hands Mr. Best the brick. Best testifies that he is familiar with his product line, and he can identify this brick as a Best C-2 Brick. Defense counsel offers the brick as an exhibit. Counsel for Lilly asks for permission to voir dire Best. In response to questions from counsel for Lilly, Best admits that the exhibit is not one of the bricks actually used to pave Main Street in Lilly. Counsel for Lilly objects, "Lack of foundation! Irrelevant!" Should Judge Hartack admit the brick into evidence? Why?

PART THREE

You have brought a claim of fraud against Best. You believe that Best paid Franklin P. Roth, a private contractor who did paving work for the town of Walnetta, Nebraska, to tell the Lilly city council that Walnetta had used Best bricks without any problem. In fact, Walnetta experienced many of the same problems as Lilly did. Part of your evidence is a log of Roth's phone calls. Roth kept this log of his business calls on a daily basis, filling it out at the end of each working day. A copy of the discoverable portions of the telephone log follows this question. This copy is identical to the document distributed in class.

Please answer each of the following three questions:

1. (Five points) If Franklin P. Roth is not available to testify at trial, what could you do to overcome objections that the phone log itself (as opposed to the statements contained in the log) is hearsay?

2. (Twenty points) Assume you are successful in laying foundation for the phone log itself. At this point, counsel for Best makes the following objection at sidebar:

"Judge Hartack, I hardly know where to begin. First, while the memo may be admissible much of its content is not. The memo is filled with hearsay within hearsay. Second, many of the statements in the memo are irrelevant or inadmissible because they are unduly prejudicial. Third, portions of the memo violate the best evidence rule. Fourth, there is no reason to believe that Mr. Roth or other people he spoke to had adequate foundation to make many of the statements made. My goodness, the document is unreliable on its face. It refers to a "Martin Goode" and there is no such person!"

At this point, Judge Hartack turns to you and says, "Alright counsel, I see a lot of evidentiary problems with this memo, and I will strike any portion of the memo I think is inadmissible under the Federal Rules. You tell me what parts of the memo you believe are admissible and why." What are your best arguments for admissibility? Are you likely to be successful?

3. (Five points) Assume that for strategic reasons you decide not to introduce the last two sentences of the log (the last line). What argument could the opposing lawyer make to persuade the judge to admit these last two sentences?

FRANKLIN P. ROTH, LTD. PAVEMENT

"WE PAVE WITH GOOD INTENTIONS"

FRANKLIN P. ROTH

PHONE LOG FOR WEEK OF MARCH 29, 1993

Monday: Received call from Purdy Goode, the Best Brick midwest sales representative. He asked us to give a recommendation for the Best C-2 paving bricks. We used the C-2 bricks for a paving job in Walnetta during the summer of 1990. (Had many problems with the C-2. In January of 1992, the second winter after the paving was done, most of the bricks flaked and cracked.) Told him all about these problems. I also told him I didn't think I could recommend the C-2 Bricks without something more.

Tuesday: Deanna Bettur, Best's midwest service representative, called me. She described a number of improvements Best had made to the C-2 Brick which she said should correct the kind of problems we had with the Walnetta job. She also read me some of Best's service reports from the Walnetta job. The service reports from the end of the first winter indicated there were no problems. The service report from December of 1991, the early part of the second winter, stated that many of the problems may have been caused by improper snow removal. Bettur admitted that the reports from February and March said the problems got much worse. I said I still needed something more to make any sort of recommendation.

Wednesday: Martin Best, Best's president, called and asked me straight out what it would take to get me to recommend the C-2 to the city engineer from Lilly. He told me that the Lilly deal was important to Best, and that Best would be willing to "share" three percent of the total cost of the order if I could help make sure Lilly bought the C-2 bricks. I told him I would think about it.

Thursday: Called Byron Oke, a contractor over in Wasoo who has worked with Best. Wanted to get his impression of Martin Best. He told me that he thought Best was a crook, who would stop at nothing to turn a profit. Called Best back and told him I needed four percent. He agreed. I told him to have the Lilly city engineer give me a call.

Friday: Received voice mail message from Trina Kelso--she said she was the city engineer in Lilly, Minnesota. She said she plans on purchasing Best C-2 bricks if she hears good recommendation. She said Martin Goode told her to call me for a recommendation. Left number, (612)699-6769. Tried to call, but no answer. Will try again this weekend.