EVIDENCE
KNAPP
SPRING, 1996
FINAL EXAMINATION
INSTRUCTIONS
1. This final exam is a three hour exam. There are three parts of the exam, each weighted equally. You need to answer all three parts, and all questions in each part.
2. All three parts of the exam are based on the Copsey Manufacturing, Inc. v. Mills Hauling Company fact scenario distributed in class. Additional facts in the Copsey scenario have been incorporated into the exam in each of the three parts.
3. This is an open book exam. You may refer to any written materials you wish while writing your answer.
4. Part One of the exam consists of three essay questions.
5. Part Two consists of two questions about the document distributed in class (a copy of which is attached).
6. Part Three consists of twelve 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.
7. 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 Emma Hartack, who is notorious for her rigid 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 not meant to be any issues involving jurisdiction, Constitutional law, contract law, tort law, Rule 803(24), presumptions, burdens of proof, judicial notice, or attorney-client privilege lurking in these questions. Consequently, do not write about these issues on the exam.
FACT SCENARIO: COPSEY MANUFACTURING, INC. v. MILLS HAULING COMPANY
[This information is identical to the material distributed in class--with one exception. The date of Nina Thespis' conversation has been corrected. That conversation took place in early 1995, not early 1994.]
You are the lawyer representing Copsey Manufacturing in its lawsuit against Mills Hauling Company. Copsey Manufacturing is a Minnesota corporation that makes electronic switching devices used in a variety of products, including aircraft, industrial machinery, and telecommunications equipment. As a byproduct of its manufacturing process, Copsey generates chemicals that must be disposed of in an environmentally conscientious manner. Copsey contracts with companies specializing in the handling of industrial waste to pick up the chemicals, decontaminate them, and then dispose of them properly.
Until August of 1994, when its contract ended, Ecotronics, Ltd. did this work for Copsey. In June of 1994, at contract renewal time, Copsey solicited bids from a variety of firms for this work. Several different firms bid on the work, and Copsey narrowed the field to two companies: Ecotronics and Mills Hauling. Copsey had never worked with Mills Hauling before, but its bid was substantially lower than Ecotronics' bid. Copsey decided to ask both firms to make formal presentations, but the day before its presentation, Ecotronics notified Copsey that it was dropping its proposal. Copsey went ahead and invited Mills to make its presentation, and then contracted with Mills to do the waste disposal for the next two years.
Almost immediately, Copsey began having problems with Mills. Mills repeatedly failed to meet the schedule for pick-up of the chemicals. Copsey learned that Mills had not properly processed or disposed of some of the waste chemicals, and a local TV news report identified Copsey as the source of some chemicals that had been illegally dumped in a local landfill. When Copsey complained to Mills, Mills said that an unexpected shortage of toxic dumpsites caused the problem. Mills told Copsey that this shortage would require Copsey to pay "contract surcharges" to avoid similar problems in the future.
Early in 1995, Nina Thespis, Copsey's Industrial Products Manager, had a conversation with Jack Fenster, Ecotronics vice president for marketing, at a trade convention. Fenster told Thespis that Mills had "scared off" Ecotronics, and that is why he decided to have Ecotronics withdraw its proposal. When Thespis asked Fenster what he meant, Fenster said he couldn't tell her anymore and that he shouldn't even be seen talking with her.
Following this conversation, Copsey became even more concerned about Mills. The final straw came when Mills refused to continue work until Copsey paid additional "contract surcharges," which nearly doubled the agreed-upon contract price. Copsey brought this lawsuit against Mills in federal court (Mills is a California corporation, so the federal courts have diversity jurisdiction). Copsey is suing Mills for a wide variety of claims including breach of contract and--because of the threats allegedly made against Ecotronics--tortious interference with contract and prospective contractual advantage.
During discovery, Copsey uncovered the attached memo written by Brigid Connelly, an Ecotronics sales representative. Copsey wants to introduce this document as evidence for some of its claims against Mills. The Connelly memo could help prove that Ecotronics dropped its proposal for the Copsey contract because of Mills' threats. Reading over the document you recognize that it presents a wide variety of evidentiary problems. In addition, you have learned that Brigid Connelly is now living in the south of France and refuses to return for trial. Jack Fenster will probably testify at trial, but during his deposition, he was reluctant to admit that Mills did anything to prompt Ecotronics withdrawal of its proposal.
In addition to the problems with the Ecotronics memo, you are sure that there are a number of other evidentiary issues that will arise at trial. Mills has hired an economics professor from the Garton School of Business to testify that Copsey suffered no damages as a result of Mills' alleged contract. In fact, the expert is prepared to use an innovative computer model to demonstrate that Copsey actually made money because of Mills' conduct! Mills' other witnesses also seem like a slippery bunch--some of them have changed their stories during litigation and more than one have criminal convictions.
PART ONE
While preparing for trial, you have encountered the following evidentiary problems:
1. (Twelve Points) Copsey claims that Mills threatened and intimidated Ecotronics, and even slashed the tires of an Ecotronics truck that was parked at the Copsey factory on July 2, 1994. [This is the same incident referred to in the Brigid Connelly memo.] As a result of these tactics, Copsey claims Ecotronics decided to withdraw its bid for the contract. Mills claims that it had nothing to do with Ecotronics' decision to withdraw its proposal. Mills specifically denies that any of its employees had anything to do with slashing the tires of the Ecotronics truck, and insists that none of its service vans were anywhere in the North Metro area, near the Copsey factory that day. At trial, Copsey will support its claim by calling Arne Dimstaad. Mr. Dimstaad is a former dispatcher for Mills, and he will testify that he sent three Mills service vans on calls to the North Metro area around the time of the tire-slashing incident. He will also testify that he remembers looking over the log of service calls at the end of the day and seeing those North Metro calls listed in the log. In defense of these claims, Mills wants to introduce the log of service calls for July 2. That log does not contain any notation of calls in the North Metro area. Can Mills use the log to impeach Dimstaad? How? Will Mills be able to prevent Dimstaad from testifying about the service calls by raising a best evidence objection? Why or why not?
2. (Twelve Points) One of the pieces of evidence you want to introduce is a handwritten statement from a man named Henry Adamson, who disappeared earlier this year. Six months ago, in December of 1995, an investigator for your office interviewed him, and Mr. Adamson wrote out this statement:
"I worked for Bert Mills and his company for almost ten years from March, 1985 to November, 1994. I was a sales representative. I'm not proud of working for that company. In July of 1994, I went with Max Clark, another Mills sales representative, to the home of Jack Fenster. Jack Fenster was the vice president for Ecotronics and I knew we were competing with Ecotronics for a contract. Max Clark told me that he had called Fenster and told him he would be getting a visit from Mills. I knew that Max was a dangerous guy and I was sure we were going to do something dangerous. We set fire to Fenster's car, and when he looked out the window to see what was going on, Max threw a brick through the window."
You expect that Mills will object that this statement is hearsay. What arguments can you make to convince the judge to overrule the hearsay objection and admit as much of the statement as possible? Are these arguments likely to be successful?
3. (Twelve points) Max Clark still works with Mills as a sales representative; in fact, he has worked for Mills since he graduated from high school in 1966. You expect that he will testify at trial. During his deposition, Clark steadfastly denied doing anything to intimidate Jack Fenster, Brigid Connelly, or any other Ecotronics employee. In 1988, Max Clark was convicted for aggravated criminal damage to property, a felony punishable by up to five years in prison. Clark was convicted for systematically shooting out the windows of an entire fleet of garbage trucks parked overnight in the lot of a Mills competitor, Paccelli & Sons. At the time, Mills and Paccelli were both bidding for a contract to dispose industrial waste for a local medical supplies manufacturer. Because he had a clean record, Clark never served any time in prison. Instead, he reimbursed Paccelli for the damage, paid a $5000 fine, and completed 250 hours of community service. You want to discredit Clark and use this conviction to bolster Copsey's claim that Mills "scared off" Ecotronics. There are at least two possible paths you could use to convince Judge Hartack to use to admit evidence of this conviction. What is your strongest argument for admitting evidence of this conviction? In your opinion, what path to admissibility will maximize the probative force of this evidence?
PART TWO
Copsey claims damages both as a result of Mills's breach of the contract and as a result of Mills's wrongful interference with the prospective contract with Ecotronics. During discovery, Copsey uncovered a memo written by Brigid Connelly, an Ecotronics sales representative. [A copy of this memo, identical to the document distributed in class, is attached as page 9 of this exam.] The Connelly memo could help prove that Ecotronics dropped its proposal for the Copsey contract because of Mills' threats.
Please answer each of the following two questions:
1. (Eight points) Brigid Connelly is now living in the south of France and refuses to return for trial. What is the best argument you can make to overcome objections that the memo itself (as opposed to the statements contained in the memo) is hearsay? What can you do to lay foundation for the memo Ms. Connelly wrote?
2. (Twenty-eight points) Assume you are successful in laying foundation for the memo itself. At this point, the lawyer for Mills makes the following objection at sidebar:
"Judge Hartack, admitting the contents of this memo will be a travesty of justice. First, while the memo may be admissible, much of its content is not. The memo is filled with hearsay within hearsay--double hearsay, triple hearsay! Second, many of the statements in the memo are irrelevant or inadmissible because they are unduly prejudicial. Third, there is no reason to believe that Ms. Connelly or most of the other people she spoke to had adequate foundation to make many of the statements made. Fourth, some of the statements are inadmissible impeachment. Fifth, the last paragraph is inadmissible because of the best evidence rule!!"
"Simmer down, counsel," Judge Hartack responds sternly. She then 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. Let's go through the memo paragraph by paragraph, and you tell me what parts you believe are admissible and why. And by the way--I don't want to hear any nonsense about Rule 803(24)." Assuming that you want to get in as much of the memo as possible, what are your best arguments for admissibility? Please include any arguments about evidentiary issues that the judge or opposing counsel may have missed. Are your arguments for admissibility likely to be successful?
PART THREE
At the trial, several different witnesses testified during the plaintiff's case-in-chief and the defendant's case-in-chief. These twelve questions consist of twelve objections made during testimony at trial. Please read through the questions sequentially since sometimes a series of questions will all refer to the direct and cross-examination of the same witness. (For example, questions 9 through 12 all concern the examination of Jack Fenster.) 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 Emma Hartack, a notorious stickler for strict adherence to the Federal Rules of Evidence:
1. The first witness to testify for the plaintiff is Nina Thespis, Copsey's Industrial Products Manager. During her testimony, Ms. Thespis states that she had a conversation with Steve Mills, the Mills site manager in charge of the Copsey contract. As she is about to testify that Mills told her that Mills would not be able to meet the contract schedule for pick-ups, defense counsel objects, "Hearsay!" How should the judge rule? Why?
2. Later during her direct examination, counsel for Copsey asks Ms. Thespis about her early 1995 conversation with Jack Fenster. Ms. Thespis is about to testify that Jack Fenster told her Mills "scared off" Ecotronics. Before she can testify about what Fester said, defense counsel objects, "Hearsay!" How should the judge rule? Why?
3. During her direct examination, Ms. Thespis also testifies about the events of July 2, 1994, the date of the tire slashing incident. Ms. Thespis states that she heard someone shouting out by the loading dock and when she went to investigate she heard Ecotronics employee Chris Maslo yelling "Those two goons in that Mills van just slashed our tires!" Counsel for Mills objects, "Hearsay!" How should the judge rule? Why?
4. The plaintiff calls Nell Copsey, Copsey's vice president for production, as a witness. Ms. Copsey testifies about the decision to invite both Ecotronics and Mills to make formal presentations following their bids on the contract. Plaintiff's counsel asks whether Mills was told that Ecotronics would also be making a formal presentation. Ms. Copsey answers, "I didn't make the call to Mills, but we always inform each company of the identity of the other competitors making presentations. Counsel for Mills objects, "Lack of foundation. Ms. Copsey admitted she didn't make any such telephone call!" How should the judge rule? Why?
5. On cross-examination of Ms. Copsey, the lawyer for Mills asks, "Ma'am, you were censured by the National Association of Production Managers for a violation of the Association's code of ethics in 1993, weren't you?" Counsel for Copsey objects, "Improper impeachment!" How should the judge rule? Why?
6. During the defense's case-in-chief, Mills' counsel calls Max Clark as a witness. Mr. Clark testifies that he has never threatened any Ecotronics employees and had no contact at all with any Ecotronics employees during June, July, or August of 1994. On cross-examination, Copsey's lawyer asks Mr. Clark to admit that he has a reputation in his business community as a hot-tempered, dangerous man. Defense counsel objects "Irrelevant!" How should the judge rule? Why?
7. During its case-in-chief, Mills also calls Bert Mills, the president of Mills hauling, to the stand. Mr. Mills testifies that he had a conversation with Nina Thespis in March of 1995 about the problems Mills was having due to the unexpected shortage of toxic dump sites. Defense counsel asks Mr. Mills about what he said during that conversation, and Mr. Mills is about to testify that he told Ms. Thespis that Mills would not pass these extra costs on to Copsey. Before he can testify about what he said, counsel for Copsey objects, "Hearsay!" How should the judge rule? Why?
8. Mills calls Prof. Thaddeus Cornfletcher, from the Garton School of Business, as an expert witness. Prof. Cornfletcher testifies about his credentials and the analysis he made of Copsey's damage claim. Prof. Cornfletcher states that he had an accountant review and summarize Copsey's records of its costs for industrial waste disposal for the five years prior to the contract with Mills. Prof. Cornfletcher is prepared to testify about the information he learned from the accountant when Copsey's lawyer objects, "Hearsay!" How should the judge rule? Why?
9. During its case-in-chief, Mills' lawyer calls Jack Fenster, the Ecotronics vice president, to the stand. Mr. Fenster testifies that Ecotronics dropped its proposal for the Copsey contract because of economic reasons, not because of pressure from Mills. On cross-examination, counsel for Copsey asks, "Isn't it true that you have been personally threatened with violence in connection with this matter?" Counsel for Mills objects, "Improper impeachment!" How should the judge rule? Why?
10. During the cross-examination of Jack Fenster, counsel for Copsey also asks, "In February of 1995, you told Ms. Nina Thespis that Mills 'scared off' Ecotronics, didn't you?" Counsel for Mills objects, "Hearsay!" How should the judge rule? Why?
11. Later in the same cross-examination, counsel for Copsey asks Mr. Fenster, "Sir, do you believe that Mills employees could have slashed the tires on an Ecotronics truck in order to discourage Ecotronics from doing business with Copsey?" Mills' counsel objects, "Improper opinion!" How should the judge rule? Why?
12. On redirect, Mills' lawyer asks Mr. Fenster "During your deposition in January of this year, when asked whether anyone from Mills threatened you or anyone else at Ecotronics, you said that nothing like that happened. Correct?" Counsel for Copsey objects, "Hearsay!" How should the judge rule? Why?
ECOTRONICS, LTD.
A Better Environment for You... And for Our World
TO: JACK FENSTER, VICE PRESIDENT OF MARKETING
FROM: BRIGID CONNELLY, SALES REPRESENTATIVE
Pursuant to our customary practice, this is my weekly report of sales calls made on behalf of the company on my regular field work days, Mondays and Tuesdays. In addition, I have also reported my contacts with personnel from our office concerning some of the marketing issues that came up this week. Jack, this report is a little unusual because of all the activity on the Copsey project. Please call me as soon as you get a chance so we can talk.
I called on Penzer Industries, the photo chemical company we signed up last year, and talked with Russ Noriama about service issues and next year's contract. I'm optimistic about expanding the work we're doing for this client. Near the end of the meeting, Noriama asked me if we were still planning on working with Copsey next year and I said we were bidding on the contract. Noriama shook his head and told me to "watch out for Mills."
My next stop was Copsey. I wanted to check to make sure our service reps had finished with the scheduled pick-ups. I figured that we didn't need any problems before we submitted our proposal. Our service reps were standing near the back loading dock talking with a tow-truck driver. I asked Chris Maslo, our senior service rep working on the Copsey project, what was going on. Maslo told me that when they came out to the dock, all the tires on their truck were slashed. Maslo said he couldn't be sure, but when he came back out to the dock he thought he saw a Mills van racing out of the lot. I stopped by to tell Nell Copsey that we had had a few problems but would complete the scheduled pick-ups later that day.
As I left Copsey, a Mills van came out of nowhere and started following me. As I slowed down at the end of the access road, the van drove up next to me, and the driver tossed a brick at my car. I pulled my car around in front of the van and got out. I went over to the van and started pounding on the window, asking the driver what he thought he was doing. He started yelling that I should stay away from Copsey, and that if I didn't I'd "be sorry." I told the guy to get lost (I might have used stronger language, actually), got back in my car and drove away.
Back at the office, I talked with Gerri Preller in our shipping department. I'd heard she'd worked for Mills and I asked her whether that was true. She looked insulted, and told me she'd never consider working for any outfit that was run by crooks and thugs. She told me that Bert Mills had been convicted of bid rigging back in the 1970's, and the company had been going downhill ever since. When I got back to my office, I called a friend over at the state records office to have him check that out--he told me that Mills did have a conviction on his record and had served a couple years in the state penitentiary.
After I came back from lunch, there were a couple of voicemail messages for me. One of them was really strange. I can't be sure, but it sounded a lot like the guy that had been driving the Mills van. The voice on the message said, "We'll do anything it takes to get the Copsey contract--don't forget it. Pass that message on to your boss Fenster. On second thought, I'll call him myself with a stronger message." Jack, I'm worried. We need to keep the Copsey contract, but these people from Mills sound like they might be dangerous.